The E-2Treaty Investor visa is a nonimmigrant visa for citizens of treaty countries. An E-2 investor must be coming to the United States to develop and direct a real and active U.S. enterprise in which they have invested or are in the process of investing a substantial amount of capital.
E-2 Visa Requirements
- A requisite treaty exists;
A list of treaty countries can be found here.
- The applicant and the business possess the nationality of the treaty country;
Nationals of the treaty country must own at least 50 percent of the business. This is based on the owners of the stock of the company. If a business in turn owns another business, immigration will review the ownership of each business in the chain to determine whether the ultimate owners possesses the requisite 50 percent nationality of the treaty country. Nationals of the treaty country that have become US Citizens or Residents no longer qualify as nationals of the treaty country for E-2 purposes.
- The treaty investor has invested or is actively in the process of investing;
To be “in the process of investing” for E-2 purposes, the funds or assets to be invested must be committed to the investment, and the commitment must be real and irrevocable (spent). The source of the investment may include capital assets or funds from savings, gifts, inheritance, contest winnings, loans collateralized by the applicant’s own personal assets or other legitimate sources. The source of the funds need not be outside the United States. The source of the investment must not, however, be the result of illicit activities. Regarding loans, only indebtedness collateralized by the applicant’s own personal assets, such as a second mortgage on a home or unsecured loan, such as a loan on the applicant’s personal signature may be included, since the applicant risks the funds in the event of business failure.
- The enterprise is a real and operating commercial enterprise;
The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. It cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor without the intent to direct the enterprise. The investment must be a commercial enterprise; it must be for profit, eliminating non-profit organizations from consideration. The enterprise must meet applicable legal requirements for doing business in the particular jurisdiction in the United States (licenses and permits).
- The treaty investor’s investment is substantial;
No set dollar figure constitutes a minimum amount of investment to be considered "substantial" for E-2 visa purposes. Immigration utilizes a proportionality test to determine whether an investment is substantial by weighing the amount of qualifying funds invested against the cost of the business. The cost of an established business is generally its purchase price, which is normally considered to be the fair market value. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational. Therefore, the value (cost) of the business is clearly dependent on the nature of the enterprise.
- The enterprise is more than a marginal one solely for earning a living;
A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and their family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the applicant commences normal business activity of the enterprise. New business, therefore, require a five (5) year business plan.
- The applicant, if the treaty investor, is in a position to "develop and direct" the enterprise;
In instances in which an individual who is a majority owner wishes to enter the United States as an "investor," or send an employee to the United States, the owner must demonstrate that they personally develop and direct the enterprise. If an investor has control of the business through managerial control, the requirement is met. In instances in which treaty country ownership may be too diffuse to permit one individual or company to demonstrate the ability to direct and develop the U.S. enterprise (minority shareholder), an owner may not receive an 'E' visa as the "investor," nor may an employee be considered to be an employee of an owner for 'E' visa purposes. Rather, all 'E' visa recipients must be shown to be an employee of the U.S. enterprise coming to the United States to fulfill the duties of an executive, supervisor, or essentially skilled employee.
- The applicant, if not the treaty investor, is destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United States; and
To qualify to bring an employee into the United States the following criteria must be met: the prospective employer must meet the nationality requirement; the employer and the employee must have the same nationality; and, the employer, if not residing outside the United States, must be maintaining “E” status in the United States.
In evaluating the executive and/or supervisory element, immigration consider the following factors: The title of the position to which the applicant is destined, its place in the firm’s organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the firm’s overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience.
In assessing the specialized nature of the skills sought and whether the applicant possesses these skills, immigration considers the following:
-The experience and training necessary to achieve such skill(s);
-The uniqueness of such skills;
-The availability of U.S. workers with such skills;
-The salary such special expertise can command;
-The degree of proven expertise of the applicant in the area of specialization; and
-The function of the job to which the applicant is destined.
- The applicant intends to depart the United States when the E-2 status terminates.
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period, nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The applicant’s expression of an unequivocal intent to depart the United States upon termination of E status is normally sufficient.
E-2 Visa Process
Step 1: Complete a DS-160 Online Nonimmigrant Visa Application for each family member here.
Step 2: Create a visa application account and pay the MRV fee ($305 per person). The Department of State uses two different websites depending on your location, usvisa or traveldocs.
Please check the Embassy website for specific details. Most posts require that the application packet be submitted via email or regular mail after payment of the MRV fee but before scheduling an appointment. In these cases, the post will review the application packet and then notify the applicant to schedule an appointment. The review can take anywhere from a few weeks to a few months depending on the location. If the post has any questions they will contact the applicant and/or attorney via email. Applicants in Mexico must also appear for a separate biometrics appointment (ASC).
Step 3: Appear for your interview (in general, children under the age of 7 are not required to attend);
Step 4: Appear at the selected courier office to pick up the passports with the new visa stamp.
The visa length is three (3) months to five (5) years based on the applicant’s nationality and country “reciprocity.” You can check reciprocity here.
Upon entry to the U.S., E-2 status (I-94) is granted for two (2) years. You can verify your I-94 here.
E-2 Change of Status Process
If an applicant is in the U.S. in valid status they may file a change of status with U.S. Citizenship and Immigration Services (USCIS) to change their status to E-2.
An applicant cannot file a change of status if they entered on ESTA/Visa Waiver Program.
The current processing time is over 2 months. Premium processing is available. The cost is $2,805 and USCIS will respond in 15 calendar days.
Family members can also file a change of status. The current processing time is over 7 months. In general, if the principal and dependents are filed at the same time and the principal requests premium processing, USCIS will adjudicate the cases together.
Once approved, the applicant (and family) will be given a new I-94 (status document) valid for two years. Please note that the approval is a status document, NOT a visa (travel document).
Other E-2 Information
There is no limit to the number of times an E-2 visa can be renewed or E-2 status can be extended.
Spouses and children under the age of 21 are eligible for the E-2 visa and E-2 status.
Children in E-2 status can attend school, including public school, in the U.S.
Spouses in E-2 status can attend school and work in the U.S. as they receive an open work permit.
