E-2 Visa for Treaty Investors

Texas E-2 Visa Attorney

An E-2 visa is designed for investors who want to invest a substantial amount of capital into a U.S. business. This may be the right type of visa for you if you want to invest in a U.S. company, you want to develop and direct your investment, and you’re from a country with which the U.S. maintains a treaty of commerce and navigation.

What is an E-2 Visa?

E-2 nonimmigrant classification allows a person from a treaty country (see the following section for a current list of these countries) to come to the United States when investing money in a U.S. business. While there’s no dollar amount attached to this immigration status, the amount must be “substantial.”

E-2 Visa

Some others may also be eligible for this status, such as certain employees of an E-2 nonimmigrant or a qualifying organization. If you’re not sure whether you’d qualify, you may want to call a Houston or Dallas business immigration attorney for guidance.

What is a Substantial Amount of Capital?

A substantial amount of capital depends on the case. It must be a monetary amount that:E-2 Nonimmigrant Classification in the United States

  • Is substantial in relationship to the total cost of purchasing an existing business or establishing a new business
  • Is enough to ensure your financial commitment to the business’s success
  • Is enough to support the likelihood that you’ll successfully develop and direct the business – and the lower the cost of the enterprise, the higher (proportionately) the investment must be for the U.S. government to consider it “substantial”

You must be investing in a bona fide enterprise. That means it must be a real, active and operating commercial or entrepreneurial undertaking that produces either services or goods and makes a profit. The business must also meet all the legal requirements (such as licensing and permits) for doing business in its jurisdiction. State and local laws may come into play, so it’s best if you consult with a Dallas or Houston business immigration lawyer before you make any concrete plans.

Treaty Countries That Cover E-2 Status

This table outlines all of the countries that cooperate in treaty status with the United States. If one of these is your home country, you may be eligible for E-2 nonimmigrant status.

AlbaniaArgentinaArmeniaAustraliaAustria
AzerbaijanBahrainBangladeshBelgiumBolivia
Bosnia and HerzegovinaBulgariaCameroonCanadaChile
China (Taiwan)ColombiaCongo (Brazzaville)Congo (Kinshasa)Costa Rica
CroatiaCzech RepublicDenmarkEcuadorEgypt
EstoniaEthiopiaFinlandFranceGermany
GrenadaHondurasIrelandIsraelItaly
JamaicaJapanJordanKazakhstanKorea (South)
KosovoKyrgyzstanLatviaLiberiaLithuania
LuxembourgMacedoniaMexicoMoldovaMongolia
MontenegroMoroccoNetherlandsNew ZealandNorway
OmanPakistanPanamaParaguayPhilippines
PolandRomaniaSenegalSerbiaSingapore
Slovak RepublicSloveniaSpainSri LankaSuriname
SwedenSwitzerlandThailandTogoTrinidad & Tobago
TunisiaTurkeyUkraineUnited KingdomYugoslavia

What is a Marginal Enterprise, and Does it Qualify a Person for an E-2 Visa?

According to U.S. immigration law, the investment enterprise – the business or company you’re investing in – must not be “marginal.” A marginal enterprise is one that doesn’t have the present (or future) capacity to make enough income to provide a living for you and your family.  However, U.S. Customs and Immigration Services will evaluate the entire enterprise. In many cases, a new enterprise might not be considered marginal even if it can’t generate enough income for you and your family to live on right now. If it looks as if the enterprise will be able to generate enough income for you and your family to live on within the next 5 years, USCIS may still grant your E-2 nonimmigrant status.

Is an E-2 a Temporary Worker Visa?

E visas are generally considered temporary. That means E-1 and E-3 visas are also for temporary workers. They only last for 2 years, although you can request extensions for up to 2 years at a time.

Do You Have to File for a Change of Status to Get E-2 Nonimmigrant Classification?

You don’t have to file for a change of status to get E-2 nonimmigrant classification. You can apply for an E-2 visa on your own, although there are different rules in place depending on whether you want to get your E-2 visa from abroad or from within the U.S.

Who Can Apply for an E-2 Visa?E-2 Visa - Treaty Trader Nonimmigrant Status

Anyone who is admissible into the United States and who has a substantial investment to make can apply for an E-2 visa. However, you must meet all the eligibility requirements, which are outlined in the following section.

General Eligibility Requirements for E-2 Visas

To qualify for E-2 classification, whether you’re applying for an E-2 visa or you’re attempting to change your status to become an E-2 nonimmigrant from another lawful status, you must meet these requirements:

  • Be a national of a country with which the U.S. maintains a treaty of commerce and navigation (see the table in the section entitled “Treaty Countries That Cover E-2 Status” to determine whether your country of origin qualifies).
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
  • Be seeking to come to the U.S. only to develop and direct your investment enterprise. You must show at least 50 percent ownership of the enterprise, or possession of operational control through a managerial position.

You’ll also have to show that you didn’t obtain your investment money through criminal activity. Even if you got your capital indirectly from criminal activity, you cannot use it to get E-2 nonimmigrant status.

What About E-1 and E-3 Temporary Worker Visas?

E-1 visas are for treaty traders who carry on “substantial trade in goods.” That may include things like services and technology. E-3 visas are for Australian specialty occupation workers who perform services in a specialty occupation.

What About Employees of Treaty Investors?

If you’re an employee of a treaty investor, you must meet all admissibility criteria to come to the United States. Additionally, you must:

  • Have the same nationality of your employer (who must also have the nationality of the treaty country under which he or she applied)
  • Meet the definition of “employee” under the law
  • Be engaging in duties of an executive or supervisory capacity, or if you’re employed in a lesser capacity, have special qualifications

If your principal alien employer isn’t an individual and is instead a business, it must be an enterprise or organization that’s at least 50 percent owned by people in the U.S. who have the same nationality of the treaty country. The owner or owners must maintain nonimmigrant treaty investor status or, if they’re not residing in the United States, must be classifiable as nonimmigrant treaty investors.

What Are Special Qualifications?

If you’re employed in a lesser capacity than an executive or supervisor, you must have special qualifications. That means you must have special skills or aptitudes that make your services essential to operating the enterprise efficiently.

When is an EB-5 Investor Visa a Better Choice?

Sometimes an EB-5 investor visa is a better choice. For example, because the E-2 investor visa doesn’t automatically lead to a green card, if you’d like to obtain permanent residency in the U.S., you may want to participate in the EB-5 investor program. You can get a green card under the EB-5 program if you make an investment in a business that creates a certain number of American jobs. If you’re not sure about your situation, talk to an immigration attorney – your lawyer will be able to give you the guidance you need.

How Long Can You Stay in the U.S. as an E-2 Treaty Trader?

With E-2 nonimmigrant status, you can stay in the United States for up to 2 years on your initial stay. You can request to extend your stay in increments of up to 2 years, as well. There is no limit to the number of extensions you can get – but you must maintain an intention to depart the U.S. when your status expires or is terminated.

What if You Travel Abroad?

If you travel abroad, you may be granted an automatic 2-year period of readmission when you reenter the United States. However, there’s no guarantee on that – and you may want to talk to your attorney if you intend to travel abroad while you’re in the U.S. under E-2 nonimmigrant status.

What Are the Terms and Conditions of E-2 Nonimmigrant Classification?

When the U.S. government gives you an E-2 visa, you may only work in the activity you were approved for when you received your classification. However, if you’re an E-2 employee, you can also work for the treaty organization’s parent company (or one of its subsidiaries) as long as:

  • The relationship between the organizations is established
  • The subsidiary employment requires your executive, supervisory or essential skills
  • The terms and conditions of your employment have not changed

Can Your Family Live With You in the United States if You’re an E-2 Nonimmigrant?

If you’re an E-2 nonimmigrant, whether you’re the treaty trader or an employee of a treaty trader, you may be accompanied by your spouse and unmarried children, provided your kids are under the age of 21. Your family members don’t have to be of the same nationality as you (or your employer). However, they must seek E-2 nonimmigrant classification as dependents. If the U.S. government approves your family members, they’ll typically get the same period of stay as you do.

If your family is already in the U.S. and want to change status or extend the stay in the E-2 dependent classification, they can apply together by filing Form I-539 with the appropriate fee.

Spouses can work, provided they apply for work authorization.

How Can You Apply for E-2 Nonimmigrant Classification?

If you’re currently in the U.S. and you have lawful nonimmigrant status, you can file to change your status with Form I-129. If you’re outside the United States, you cannot use that form – you’ll have to refer to your attorney or to the U.S. Department of State to find out how you can get a visa to come to the U.S. When you arrive at a U.S. port of entry, you can apply to a Department of Homeland Security immigration officer for admission as an E-2 nonimmigrant.

Do You Need to Talk to an Immigration Attorney About an E-2 Visa?

We may be able to help you come to the United States as a treaty trader or employee of a treaty trader using the E-2 nonimmigrant classification. Call us today or contact us through our website to find out what we can do for you!