Eligibility: The following individuals or entities will be eligible for an E-2 visa.
- Entrepreneurs from a treaty country (treaty countries are listed under E-1 visa above) involved in substantial investments in a U.S. enterprise.
- Treaty country nationals entering the U.S. to develop and direct investments.
- Treaty country nationals entering the U.S. to develop and direct the operations of an enterprise in which they, themselves have invested, or are currently in the process of investing a substantial amount of capital.
- Immediate family members of E-2 visa holders.
- Companies in treaty countries sending vital personnel to the U.S. to manage the U.S. affiliate or branch
- Companies in treaty countries sending personnel to setup a U.S. company.
Investment: must have already been made or must presently be in the process of being made.
- The funds must be “at risk” such as the unsecured loan or collateral for the loan must be from personal assets.
- Inheritance of a business is not an investment in the enterprise.
- It is not necessary that the source of funds be outside the U.S.
- The intent to invest or plans to invest in the future are not investments.
- The funds must be irrevocably committed to the business and the visa applicant must show this commitment.
- Escrowed Funds: It is acceptable if while waiting for the approval of an E visa application, the investment funds are placed into escrow in such a way that they are committed to the enterprise but are also protected in the event that the application is denied.
- Funds may not be acquired through criminal activity. Criminal activity will include activities, which would be criminal under U.S. law.
- Value of the Investment 9 FAM 41.51 N.8.2-1, N.8.2-2.: Rent paid is considered an investment. The purchase of equipment or inventory for the enterprise is also considered an investment. While an inherited business will not be considered an investment, inherited funds may be used to make an investment in an enterprise.
- Commercial Enterprise: Investment may not be passive. Nonprofit institutions such as schools and associations are not considered commercial enterprises and by investing in them one will not be eligible for an E-2 visa.
- Substantiality of Investment: The Department of State uses a relative/proportionality test to determine whether an investment is substantial.
- Small and Medium Size Businesses: If the cost of the enterprise is lower, then the investment must be proportionally higher to be considered as a substantial amount.
- The investment cannot be a marginal investment. 9 FAM 41.51 N.11; 8 C.F.R. §214.2(e)(15); 22 C.F.R. 41.51(o). The investment cannot be only to provide a living for the investor and his family.
- Develop and Direct. 9 FAM 41.51 N.12.1: The investor must manage the business and not be participating as a skilled worker. Investors should have a controlling interest in the business. A controlling interest exists if the person has 50% ownership of the enterprise, has operational control through a managerial position, or through some alternative means. 8 C.F.R. §214.2(e)(16), 22 C.F.R. §41.51(b)(11).
Nationality: To determine the nationality of an investment enterprise, the same requirements of E-1 nationality will apply.
Employees of E-1 and E-2 visa holders must have the same nationality as the treaty employer and must be executives, supervisors or a nonsupervisory person with unique qualifications making him/her vital to the employer.
- To determine if an employee is essential the following factors will be evaluated: the employee’s degree or proven expertise in a particular area, the specificity of the employees skills, the purpose of the employee’s job, the salary required by the expertise, and the availability of U.S. workers for that position.
Procedure for E-1 and E-2 Visas 8 C.F.R. §214.2(e)(19), (20) and (21):
- Application for E status when changing one’s status once he is already in the U.S. is filed on Form I-129.
- Consular Post: Most posts use the DS-156E form as well as the Form DS-156 visa application. The visa applicant must provide evidence of the investment.
- Visa Reciprocity- When determining how long a visa will be granted it is necessary to consult the country of nationality for the maximum time they grant to U.S. Citizens (USCs). Typically, the maximum time is five years; the time periods are published in the Department of State (DOS) reciprocity schedule.
- Duration: E visa admission is for 2 years. If the E visa holder does not leave the U.S. during the 2-year period, then he/she must file an I-129 before the expiration of the 2-year period of the E visa. 8 C.F.R. §214.2(e)(20).
- Special qualification/essential employee is only given 2 years for the start-up operation, except when extenuating circumstances are present.
- Substantive and nonsubstantive changes in the employer.Subsidiary Employment 8 C.F.R. §214.2(e)(8)(ii).: An individual is allowed to perform work for a parent or subsidiary of an enterprise without it being considered a substantive change of E status if the subsidiary qualifies as a treaty organization on its own at the time the E treaty status was granted, the work calls for an executive, supervisory or essential skill person; and complies with the E status.
- If there is a substantive change then a new I-129 must be filed with an employer supplement. A substantive change occurs when there has been a fundamental change in the employer’s basic traits.
- Nonsubstantive changes include a change in name of treaty company, some mergers and acquisitions in which an individual’s employment is not changed as a result of the merger or acquisition.
- If one is unsure regarding the quality of a change, she/he may consult the USCIS for advice by filing an I-129.
- Multiple Employees: More than one employee with E-2 status may be hired.
- E-1/E-2 in Lieu of H-1B (Specialty Workers): E-2 status will not be given to individuals paid by a job-shop to work at another U.S. owned company.
- An E-1 applicant is generally responsible for providing proof that trade is already in existence at the time of his/her application. The exception to proof of current trade will be proof of binding contracts calling for immediate trade.
- An E-2 applicant may have a start up business.
Family of E visa applicants:
- Applies to spouse and children who are accompanying the applicant.
- Employment Authorization:
- The spouse of an E visa holder entering the U.S. as an E spouse may obtain employment authorization. If the request is filed on the I-129 application then it needs to be filed at the VSC and the VSC will forward it to the CSC. If Form I-129 is pending then the request must filed with the Service Center that has given the receipt notice, either the Vermont or California Center.
- To gain employment authorization the spouse must provide: 1. Proof of principal’s current visa status; and 2. I-94s of principal and spouse verifying their marital relationship. Employment is granted for no more than 2 years.
- If the spouse does not receive a Form-I-765 providing proof of employment authorization, within 90 days then he/she should go to the local district office and will be given employment for 240 days.
- Children will not be granted employment authorization but they are permitted to attend school without changing their status.
Bilateral Investment Treaties: Recently the U.S. has signed treaties directed solely to investment called Bilateral Investment Treaties (BIT) and to Free Trade Agreements (NAFTA/ Fast Track) which consist of E-1 and E-2 aspects. BITs permit E-2 status only.