E-2 VISA for TREATY INVESTORS & EMPLOYEES
The E-2 visa is designed to allow a national of a treaty country solely to invest a substantial amount of capital in a U.S. business (called, treaty enterprise) and develop and direct the treaty enterprise in the United States.
Certain employees of an E-2 treaty investor may also be eligible for this visa classification.
While if the treaty investor or his/her future employee is currently in the United States, he or she may apply for change of status to E-2 to the USCIS; if the person is physically outside the United States, then he or she may apply for an E-2 visa to a U.S. Consulate in his or her home country or in a 3rd country if qualified.
Qualifications of an E-2 Treaty Investor Visa:
To qualify for E-2visa, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation
- Have invested, or be actively in the process of investing, a substantial amount of capital, which may not be marginal, in a bona fide enterprise in the United States
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
To be qualified as an E-2 investment, the capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal or drug-related activity.
A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her immediate family. Or, the non-marginality of the enterprise can be proved with its capacity to have a significant impact on the U.S. economy. The enterprise should have the capacity to generate such income within five years from the start date of the investor’s E-2 classification.
Qualifications of an E-2 Employee Visa:
To qualify for E-2 visa, the employee of a treaty investor must:
- Have the same nationality with the treaty investor
- Be an employee who is either engaging in duties of an executive or supervisory character, or an essential employee in a lesser capacity having special qualifications
Special qualifications are skills which make the employee’s services essential to the efficient operation of the treaty trader’s business. The factors to be considered in determining if the employee has special qualifications include, but are not limited to,:
- The level of expertise in the employee’s field
- Whether others also possess the employee’s specific skills
- The salary that the special qualifications can command
- Whether the skills and knowledge are readily available in the United States
Knowledge of a foreign language and foreign business culture does not, by itself, meet this requirement.
Period of Stay:
The maximum initial stay of an E-2 visa holder is two years. And, he or she may request an extension of stay for up to two years. An E-2 nonimmigrant, having a valid visa stamp at the time of reentry, may be granted a two-year of extension automatically by reentering the United States after traveling abroad. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.
Family of E-2 Treaty Investors and Employees:
A treaty investor or an E-2 employee may be accompanied or followed by his or her spouse and unmarried children under 21. Their nationality need not be the same as the treaty investor or employee. An E-2 spouse may work in the United States if and when obtaining an Employment Authorization from the USCIS.
E-2 Nonimmigrant’s Green Card Application:
An E-2 treaty investor may not apply for the permanent residency under the sponsorship of the business enterprise that he or she owns; an E-2 employee, however, may. If an E-2 treaty investor receives an offer of a permanent occupation from a different U.S. employer, then he or she may obtain the Green Card through employment-based immigration process.
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