Procedures for Sponsoring E-2 Nonimmigrant Workers Already in the U.S.

The application process is completely different when seeking a new status for a worker in the U.S. rather than applying for an entry visa.

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Under the E-2 “treaty investor” nonimmigrant visa category, a U.S. business established by a substantial investment and at least 50% owned by citizens of a country that has an authorizing treaty with the U.S. can temporarily hire workers from that same country to perform executive, supervisory, and essential-skills jobs. The principal investor in such a business can also use this visa category to secure temporary U.S. status – in fact, a principal investor who is in the U.S. must be in E-2 status in order to employ E-2 workers. To read more about E-2 substantive requirements, see the article “E-2 Visa for Treaty Investors in the U.S.: Who Qualifies?

Once you’ve determined that your business and your prospective employee can meet the E-2 eligibility requirements, you will need to figure out where and how to apply. This article addresses that topic for workers already in the United States. (For workers coming from outside the U.S., see the article “Procedures for Sponsoring E-2 Nonimmigrant Workers Coming from Outside the U.S.”)

Filing a Nonimmigrant Worker Petition With USCIS

You can file a petition with U.S. Citizenship and Immigration Services (USCIS) to change the status and extend the stay of a prospective employee who is in the U.S. in another nonimmigrant status.

The form used for this purpose is the standard Petition for a Nonimmigrant Worker, Form I-129, accessible at theForms page of the USCIS website. The form consists of an initial seven pages requesting information required for all types of nonimmigrant worker petitions, followed by several sets of supplementary pages for the specific visa categories. The E supplement, consisting of two pages immediately following the general section, requires you to set forth the E-2 qualifying characteristics of your business and prospective employee.

USCIS publishes instructions for Form I-129, but since the form is used for all types of nonimmigrant worker petitions, the instructions for any one type can be somewhat sketchy. Better advice concerning the kinds of documents needed to establish E-2 qualifications appears in the State Department's instructions for Form DS-156E, used for E-2 visa applications. As outlined there, these are the kinds of documents you can submit to establish that your business meets the E-2 requirements:

  • Evidence of possession and control of investment funds: bank records, financial statements, loans, savings, promissory notes.
  • Evidence of remittance of funds to the U.S.: bank drafts, transfers, exchange permits, receipts.
  • Evidence of establishment of business in the U.S.: articles of incorporation, partnership agreements, organization and staffing charts, shares, titles, contracts, receipts licenses, leases.
  • Evidence of investors’ nationality: passports, articles of incorporation of parent company, stock exchange listings.
  • Evidence of investment in the U.S.: titles, receipts, contracts, loans, bank statements.
  • Evidence of the substantiality of the investment: financial statements, audits, corporate tax returns.
  • Evidence that the enterprise is not marginal: payroll records, payroll tax forms, personal tax returns or other evidence of personal income and assets.
  • Evidence that the enterprise is a real, operating business: annual reports, catalogs, sales literature, news articles.

Of course, form instructions can provide only general guidance – no set list of supporting documents could cover all types of E-2 eligible businesses. What documents you present depends on the nature of your business.

For instance, a publicly traded corporation might show the requisite foreign ownership through a stock exchange listing, while a closely held corporation will typically present copies of stock certificates and owners’ passport identification pages.

To establish that the business is not marginal, a sole proprietor might present personal income tax returns, proving that the business generates more than enough income to sustain the investor’s family, while a larger company would submit evidence such as payroll records to prove it generates economic activity by employing people.

In addition to the documents qualifying your business, you will need to submit evidence that your prospective employee meets the E-2 requirements and is eligible to change status:

  • Evidence of nationality: Passport identification pages
  • Evidence of current nonimmigrant status: I-94 card (for a description of the I-94 card, see discussion below about maintaining status)
  • Evidence of qualifications: Resume, diplomas, certificates, as relevant

Needless to say, the E-2 petition packet needs a good cover letter to assist the USCIS adjudicator in making sense of your documents and how they satisfy the E-2 requirements.

Filing Fees and Locations

The USCIS petition fee is generally paid by a check or money order made out to the U.S. Department of Homeland Security and submitted along with the petition. No rules govern who pays, but since the employer signs and submits the petition, the employer generally produces the payment as a practical matter.

Check the USCIS website for filing fee and location just before filing, as both change periodically.

Reasons to Consider Consular Processing, Even for Workers in the U.S.

USCIS generally grants E-2 status for an initial term of two years. If your prospective E-2 hire contemplates travel outside the U.S. during the first two years of employment, you may prefer consular processing from the beginning, even where a USCIS petition is possible.

This is because your employee will need to get a visa at a consular post to reenter the U.S., and, unlike other types of nonimmigrant petitions, the E-2 petition has no force at all at a consular post. Whereas, say, an H-1B employee need only present an approved unexpired USCIS petition at a consulate abroad to support the basic visa application form, an E-2 employee will need to make a completely new visa application with all the required supporting documents – so why not just go for a visa from the outset? (For information on how to apply for a visa through a consulate, see the article “Procedures for Sponsoring E-2 Nonimmigrant Workers Coming from Outside the U.S.”)

What is more, an employee granted a five-year E-2 visa can extend status within the U.S. simply by leaving and reentering (see discussion below).

How to Maintain E-2 Status in the U.S.

On approving an E-2 petition, USCIS issues an approval notice to the employer that includes a status document for the employee. The notice is perforated so that you can tear off the bottom portion, the I-94 card, and give it to your employee to serve as evidence of status. You and your employee must track the expiration date on the I-94. Typically, E-2 status is granted for an initial two-year term.

Before the I-94 expires, you can extend your employee’s status by filing a second petition with USCIS. Theoretically, E-2 status can be extended indefinitely by the filing of a petition every two years. But USCIS does require persuading anew each time, and employers are frequently asked to present some evidence that U.S. workers are not available for the job in question.

An employee who has processed abroad for an E-2 visa will generally be admitted with a two-year period of stay on entering the United States. Since the visa itself is generally issued for a five-year term, the visa-holding employee will have an alternative to a USCIS petition for extending status: traveling and re-entering.

With each reentry during the life of the visa, the immigration officer at the point of entry should grant a new two-year period of stay. Thus, through strategic traveling, an E-2 visa holder could parlay a five-year visa into a seven-year stay without ever having to reestablish the E-2 qualifications.

by: Deborah Dyson

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