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

The United States has entered into 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 they have invested. (See I.N.A. § 101 (a)(15)(E).)

This article will discuss:

• main features of the E-2 visa
• who qualifies for an E-2 visa
• which countries citizens are eligible for E-2 visas, and
• where to learn about next steps in applying for an E-2 visa.

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 $500,000 or more, while an E-2 visa has no dollar minimum set in law.

What Are the Key Features of the E-2 Visa for Treaty Investors?

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

• The treaty investor and certain employees can work legally in the United States for a U.S. business in which a substantial cash investment has been made by the investor, so long as the country of which the investor is a national has a treaty with the United States.
• While in the U.S., the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.
• Initial visas may last for up to five years (depending on your country of origin), with unlimited extensions. The length of the visa depends upon the visa "reciprocity" agreement between the U.S. and the foreign country and upon the viability of the business. (New companies receive shorter validity periods.)
• Each time E visa holders (workers or family members) enter the U.S., they receive a period of stay of up to two years. They also may extend their stay while remaining in the United States.
• Visas are available for an accompanying spouse and minor, unmarried children.
• The spouse, but not children, may accept employment in the United States.

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.

What Are the Qualification Criteria for an E-2 Treaty Investor Visa?

There are six requirements for getting an E-2 visa to the United States:

• The applicant must be a citizen of a country that has a relevant treaty with the United States.
• The applicant must be coming to work in the U.S. for a company that the applicant 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 actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers.
• The applicant must intend to leave the U.S. when their business in the U.S. is completed, although they are 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 qualifying treaties with the United States). You can check on whether your country has such a treaty in force on a U.S. State Department web page listing the treaty countries.

Generally, the applicant need not be presently residing in the country of citizenship in order to qualify for an E-2 visa. Check with the U.S. consulate in your home country to see if you must be.

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 experienced immigration attorney or a full personal analysis of your eligibility, and help with the application process and interacting with U.S. government officials.