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 stay temporarily in the U.S. and direct the investment – 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 the where and how for workers coming from outside the United States. (For workers already in the U.S. in another nonimmigrant category, see the article “Procedures for Sponsoring E-2 Nonimmigrant Workers Already in the U.S.”)
Applying for an E-2 Visa at an Embassy or Consulate Abroad
To work for an E-2 qualifying business in the U.S., your prospective hire outside the U.S. must secure an E-2 visa at a U.S. embassy or consulate abroad and use it to enter the U.S. in E-2 status.
Generally, the visa application process unfolds in three steps:
- Employer or employee prepares, and employee submits, Form DS-160 (a generic nonimmigrant visa application) online.
- Employer prepares and submits a paper filing consisting of Form DS-156E (nonimmigrant treaty trader/ investor application) with confirmation page from DS-160 and supporting documents; and
- Employee attends an interview at a consular post.
Some consular posts register U.S. businesses for E-2 visa purposes and retain the E-2 qualifying corporate information after they’ve approved an initial visa. Registration eliminates the second step for your subsequent E-2 hires, letting them pass more quickly from application to interview.
Tips for Filling Out Form DS-160 Nonimmigrant Visa Application
The DS-160 form used for E-2 visa applications is the same electronically filed application form that’s used for nearly all nonimmigrant visas. Though either you or your employee can fill out the form, the instructions explicitly state that the applicant – that is, your employee – must personally press the final “sign application” button. Thus, if you complete the form, you’ll need to save it online and instruct your prospective employee how to retrieve and “sign” it.
The form, accessed at https://ceac.state.gov/genniv/, can be somewhat annoying to use, because it is presented as a sequence of screens, each asking for a small amount of information. Since the user can neither see the form as a whole nor progress from one screen to the next without supplying the requested information, filling it in can be a stop-and-start affair. What is more, if you stop for more than 20 minutes without saving the form, you lose whatever you’ve input. To save the form and come back to it later, you have to record an application number supplied at the first screen.
After “signing” the application and submitting it online, your employee should print out the confirmation page for filing at the consular post along with the packet of E-2 supporting documents.
Tips for Preparing and Submitting Form DS-156E and Supporting Documents
After the E-2 online application has been submitted, you will need to complete the E-2 visa application through a paper filing with the consular post. The E-2 visa packet comprises the confirmation page from the online DS-160 application along with Form DS 156E and supporting documents.
Form DS-156E is a three-page form requiring you to set forth the E-2 qualifying characteristics of your business and prospective employee. Though all U.S. consular posts use this same basic form to collect E-2 qualifying information, they vary as to what they expect to see in the E-2 visa packet and how they want it presented. Most consular posts offer specific instructions at their websites, which you should definitely check before assembling the E-2 visa packet. Some posts go so far as to specify the tabs under which they expect to find particular documents in the visa packet.
The instructions to Form DS-156E provide good general guidance concerning E-2 supporting documents. As outlined there, these are the kinds of documents you can submit to establish 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.
- Evidence of the qualifications of the prospective employee: resume, diplomas, certificates.
Again, though, this is 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.
Needless to say, the E-2 packet needs a good cover letter to assist the consular officer in making sense of your documents and how they satisfy the E-2 requirements.
Follow the directions at the consular post’s website for delivering the E-2 visa packet. Some posts provide information about how long they will take to review the packet. At some posts, a backlog of E-2 visa applications will add to the review time. Because of the complexity of the application and the possibility of a backlog, you should expect and plan for a substantial wait between the submission of the visa packet and the scheduling of an interview for your employee.
Preparing the Applicant for the Consular Interview
Every consular post has its own procedures for scheduling and conducting visa interviews; the individual consular websites provide specific instructions.
At the interview, an E-2 visa applicant can expect close questioning about the nature of the work to be performed in the U.S. and the applicant’s qualifications to perform that work. Make sure to give your prospective employee an opportunity, before going in for the interview, to review the E-2 visa packet you submitted to the consular post.
Your prospective E-2 employee should also be clear about coming to the U.S. for a limited stay, intending to return when the temporary E-2 employment ends.
Visa application fees are generally paid in conjunction with the consular interview. A second, “reciprocity” fee may be required when the visa actually issues, depending on how the applicant’s home country charges U.S. citizens for similar visas.
Procedures to Maintain E-2 Status in the U.S.
An E-2 visa will generally be granted for a five-year term, though nationals of some countries are granted shorter terms. On entering the U.S. with an E-2 visa, your employee will be granted a certain period of stay in E-2 status, generally two years. Typically, the admitting officer will stamp and annotate both your employee’s passport and a small white card, Form I-94, to reflect the authorized period of stay. It’s this I-94 card – and not the visa – that governs your employee’s immigration status within the United States.
You and your employee must track the expiration date on the I-94. Before the I-94 expires, you can extend your employee’s status by filing a petition with USCIS. (For information on filing a USCIS petition, see the article “Procedures for Sponsoring E-2 Nonimmigrant Workers Already in the U.S.”)
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.
Alternatively, an employee whose E-2 visa is still valid can travel and reenter the U.S. to be granted a new period of stay. With each re-entry 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.