How to Sponsor a Foreign Worker (Coming From Outside the U.S.) for an E-2 Visa

Learn about the application form and documents required to sponsor a worker for a treaty investor visa.

By , Attorney · University of Miami School of Law

The E-2 "treaty investor" nonimmigrant visa category offers a pathway for investors from certain countries and their employees to come to the U.S. to temporarily stay and direct their businesses (and even bring families along). The investor can be an individual or an organization. Either way, the investor must make a substantial investment in a U.S. business and the business must be at least 50% owned by citizens of a country that has an authorizing treaty with the U.S. A business with E-2 classification can temporarily hire employees from that same country to perform executive, supervisory, and special-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 E-2 Visa for Treaty Investors in the U.S.: Who Qualifies?

After determining that your business and prospective employee can meet the E-2 eligibility requirements, you 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 How to Sponsor a Foreign Worker Who's Already in the U.S. for an E-2 Visa.)

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. Ordinarily, the visa application process unfolds in three steps:

  1. Employer or employee prepares, and employee submits, Form DS-160 (a generic nonimmigrant visa application) online.
  2. Employer prepares and submits a paper filing consisting of Form DS-156E (nonimmigrant treaty trader/ investor application) along with the confirmation page from the employee's DS-160 and supporting documents, and
  3. Employee attends an interview at a U.S. consulate or embassy abroad.

Some consulates and embassies register U.S. businesses for E-2 classification and retain the E-2 qualifying corporate information after they've approved an initial visa. This registration eliminates the second step for any 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. And if you stop for more than 20 minutes without saving, you lose whatever you've input. To save and come back to the form later, you have to record an application number on the top right hand corner of the page. Be sure to write down that number first thing. If you're filling the information yourself instead of your employee, be prepared to either save often or make sure your employee is accessible to answer questions about personal information. The website claims it will take about 90 minutes to complete.

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 by submitting physical forms and documents to the U.S. consulate or embassy (known as a "consulate post") in your home country. The E-2 visa packet must contain 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, each individual consular post has its own instructions for what to include in the E-2 visa packet and how they want it presented. Most consular posts offer specific instructions on 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 should present will depend on the nature of your business. For instance, a publicly traded corporation might demonstrate its foreign ownership through a stock exchange listing, while a closely held corporation will typically present copies of stock certificates and its 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, expect and plan for a substantial wait between your submission of the visa packet and the scheduling of an interview for your employee.

Preparing the E-2 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. (See Consequences of Overstaying a U.S. Visa or I-94.)

Filing Fees for E-2 Visa

Visa application fees are generally paid before the employee's consular interview. A second fee, sometimes called a "nonimmigrant visa issuance" fee or "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 during which the visa is valid, 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, most likely two years. Typically, the admitting officer will stamp and annotate both the 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 validity period of the visa itself, 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 How to Sponsor a Foreign Worker Who's Already in the U.S. for an E-2 Visa.)

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 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. Each time the employee reenters the U.S. while the visa is still valid, 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 E-2 qualifications.

Family of E-2 Employees

Spouses and unmarried children under 21 years old can obtain dependent E-2 classification to accompany or follow the E-2 employee to the U.S. They do not even have to be the same nationality as the E-2 employee. Spouses of E-2 employees can even legally work in the U.S. during their stay.

The process of applying for a dependent E-2 visa for an employee's spouse or minor child who is outside of the U.S. is similar to the process of applying for your employee. It can be done at the same time as applying for your employee's E-2 visa or after the employee's visa has been approved. You, your employee, or the spouse will fill out the same online Form DS-160 and pay the relevant fee and schedule an interview at the consular post in the employee's home country.

Helpfully, the online portal for the online Form DS-160 allows you to create a family or group application, which will auto-populate certain information on any subsequent applications created within the family/group. After filling out the form for the employee, the confirmation page will have an "Email Confirmation" option, which leads to a "Thank You" page. On that "Thank You" page, there is an option to create a family or group application. Any data that auto-populates is editable before submission.

As with the principal E-2 employee visa, each consular post will have different instructions as to what documents they require. The derivative spouse or child applicant will also need to provide the confirmation page from the submitted Form DS-160. The derivative applicant will almost certainly also need to provide proof of their qualifying relationship to the employee, such as an original marriage or birth certificate, and proof that the marriage is bona fide, such as wedding photos or joint utility bills. For a list of documents that can help prove a bona fide marriage, see Documents to Bring to Your Marriage-Based Adjustment of Status Interview.

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