The E-2 visa category allows foreign nationals who are citizens of treaty countries to engage in activities as a treaty investor, or as an employee of a qualifying entity that in turn must be a treaty investor. U.S. Treaty investors invest a substantial amount of capital in a U.S. business.
E-2 Visa Requirements
E-2 Treaty Investor
The treaty investor must meet the following criteria to qualify:
- 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 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.
An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. 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 activity.
A current list of treaty countries with which the United States maintains a treaty of commerce or navigation may be found at: U.S. Department of State Treaty Countries.
Employee of a Treaty Investor
An employee of a treaty investor must meet the following criteria:
- Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
- Meet the definition of “employee” under the 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 treaty investor employer is an entity or organization it must be 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
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.
Period of Stay
Treaty Investors and employees of treaty investors will be allowed a maximum initial stay of two years. Extensions may be granted in increments of two years. No maximum limit in E-2 status exists, however, all E-2 nonimmigrants must maintain an intention to depart to depart the United States when their status expires or is terminated.
Dependent Spouses and Children of E-2 nonimmigrants may qualify for E-2 dependent status. The nationality of the E-2 dependent need not be the same as the treaty investor or employee.
Spouses of E-2 nonimmigrants are work authorized through the filing of the Application for Employment Authorization. If granted, no restrictions apply as to where they may work.