E-2 Visa for Treaty Investors in the U.S.: Who Qualifies?

The United States has entered into trade treaties with several countries and established the E-2 visa to allow businesspeople from those countries to work in the U.S. for a business in which people from their country have invested. (Authorization for this comes from the Immigration and Nationality Act at I.N.A. § 101(a)(15)(E), 8 U.S.C. § 1101(a)(l5)(E); and the immigration regulations at 8 C.F.R. § 214.2(e); 22 C.F.R. § 41.51.)

Note: Do not confuse E-2 treaty investor visas with green cards through investment. The E-2 visa is a nonimmigrant visa, meaning it is temporary, while green cards are permanent. Moreover, a green card through investment requires a dollar investment of $1 million or more, while an E-2 visa has no dollar minimum.

Key Features of the E-2 Visa

Let’s review some of the pluses, minuses, and issues surrounding the E-2 visa:

• 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.

Like the E-1 visa, 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.

Qualification Criteria for an E-2 Treaty Investor Visa

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.

Which Countries’ Citizens Qualify for E-2 Visas

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. The first place to check on whether your country has such a treaty in force is the list at Volume 9 of the U.S. Foreign Affairs Manual (FAM), § 41.51, Exh. 1. (www.state.gov/m/a/dir/regs/fam/09fam/index.htm.) Also check with the appropriate U.S. consulate in the home country before going ahead with an application.

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.

You're Interested in an E-2 Visa: What's Next?

For details about what to expect and do during the E-2 visa application process, see U.S. Immigration Made Easy, by Ilona Bray (Nolo).

You might also wish to consult an immigration attorney for a full personal analysis of your eligibility, and for help with the application process. Using Nolo's Lawyer Directory, you can find an expert attorney who fits your needs and has taken the Nolo pledge promising respectful service. Look in particular for an attorney with expertise in business immigration law (even immigration law has many subspecialties within it).