Some people call the E-2 the next best thing to U.S. permanent residence, because it is possible to obtain via self-employment, and it comes with an unlimited number of extensions. Also, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.
The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.
- Key Features of the E-2 Visa
- Qualification Criteria for an E-2 Treaty Investor Visa
- Marginal Enterprises
- Which Countries’ Citizens Qualify for E-2 Visas
- Qualifications of the Employee of a Treaty Investor
- Period of Stay
- Terms and Conditions of E-2 Status
- Family of E-2 Treaty Investors and Employees
The treaty investor can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the visa holderor other citizens of the country of origin, so long as this country has a trade treaty with the U.S.
The treaty investor may travel in and out of the U.S. or remain here continuously until the visa and status expire.
The treaty investor is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.
The initial E-2 visa may last up to five years, with unlimited possible five-year extensions.
Each time the treaty investor enters the U.S., he or she will be admitted for two years.
Visas are available for an accompanying spouse and minor, unmarried children. However, the children cannot work in the U.S.
A spouse will be permitted to accept employment in the U.S.
There are six requirements for getting an E-2 visa:
The applicant must be a citizen of a country that has an investor treaty with the United States.
The applicant must be coming to work in the U.S. for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the country of origin.
The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.
The applicant or the company must have made a substantial investment in the U.S. business (there’s no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business).
The U.S. company must be a bona fide, active, for-profit business, not a mere “marginal” profit-producer. It must be actively engaged in trade or the rendering of services and meet the applicable legal requirements for doing business in its state or region.
The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.
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 bona fide enterprise refers to a real, active and operating
commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
The investment enterprise may not be marginal. 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 family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.
E-2 visas are available to citizens of certain listed countries (ones that have trade treaties with the United States). In addition to the treaties already in effect, some are pending and will go into effect within the next several years.
See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.
With the exception of E-2 applicants from the United Kingdom, the applicant need not be presently residing in the country of citizenship in order to qualify for an E-2 visa.
To qualify for E-2 classification, the employee of a treaty investor
Be the same nationality of the principal alien employer (who must have the
nationality of the treaty country)
Meet the definition of “employee” under relevant law
Either be engaging in duties of an executive or supervisory character, or if
employed in a lesser capacity, have special qualifications.
If the principal alien employer is not an individual, it must be an
enterprise or organization at least 50% owned by persons in the United States
who have the nationality of the treaty country. These owners must be
maintaining nonimmigrant treaty investor status. If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.
Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.
Special qualifications are skills which make the employee’s services
essential to the efficient operation of the business. There are several
qualities or circumstances which could, depending on the facts, meet this
These include, but are not limited to:
The degree of proven expertise in the employee’s area of operations
Whether others possess the employee’s specific skills
The salary that the special qualifications can command
Whether the skills and qualifications are readily available in the United
Knowledge of a foreign language and culture does not, by itself, meet this
Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later
Qualified treaty investors and employees will be allowed a maximum initial
stay of two years. Requests for extension of stay may be granted in increments of up to two years each.
There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
An E-2 nonimmigrant who travels abroad may generally be granted an automatic
two-year period of readmission when returning to the United States.
A treaty investor or employee may only work in the activity for which he or
she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:
Relationship between the organizations is established
Subsidiary employment requires executive, supervisory, or essential
Terms and conditions of employment have not otherwise changed.
USCIS must approve any substantive change in the terms or conditions of E-2
status. A “substantive change” is defined as a fundamental change in the
employer’s basic characteristics, such as, but not limited to, a merger,
acquisition, or major event which affects the treaty investor or employee’s
previously approved relationship with the organization. The treaty investor or enterprise must notify USCIS by filing a new petition and requesting an extension of stay with the new terms included. It is not required to notify USCIS about non-substantive changes.
A strike or other labor dispute involving a work stoppage at the intended
place of employment may affect a Canadian or Mexican treaty investor or
employee’s ability to obtain E-2 status.
Treaty investors and employees may be accompanied or followed by spouses and
unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-2 spouse may work.
As discussed above, the E-2 treaty investor or employee may travel abroad and
will generally be granted an automatic two-year period of readmission when
returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.
To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.