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 United States 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 to apply for an E-2 visa
• what types of investments qualify
• 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, meaning their holders are lawful permanent residents. 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 in E-2 status 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 the holder's country of origin), with unlimited extensions of E-2 status. The length of the E-2 admission period depends upon the visa "reciprocity" agreement between the United States 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 United States, they receive a period of stay of up to two years. They also may extend their stay while remaining in the United States.
• E 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 instead of a job offer, and it comes with an unlimited number of extensions of status. 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 United States 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 qualifying investment in the U.S. business. (See discussion of "qualifying investment" below.)
• The U.S. company must be a "bona fide" enterprise, actively engaged in commercial activities. It must meet the applicable legal requirements for doing business in the state or region where it's located. 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 United States when their business in the country 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.

See 8 C.F.R. 214.2(e) for the relevant government regulations and details.

What Is a "Qualifying Investment" in a U.S. Business?

The E-2 investor must make a "substantial" investment in the U.S. business. There is no legal minimum, but the applicant or company must be:

• putting capital or assets at risk (in other words, the applicant could stand to lose a chunk of money if the business doesn't do well)
• trying to make a profit, and
• investing an amount that is substantial relative to the type of business, and enough that the investor will be financially committed to its success.

So, for instance, an investment in land will not do it. Neither will investing in a "marginal" enterprise, meaning one that lacks the present or future capacity to generate more than enough money to provide a minimal living for the treaty investor and family.

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.

To Apply for an E-2 Visa: What's Next?

If you're interested in an E-2 visa, your first task will be to find (or form) a business to invest in. That business will then take a leading role in your application process. See How to Sponsor a Worker for a Temporary, Nonimmigrant Visa for an overview, and How to Sponsor a Foreign Worker Who's Already in the U.S. for an E-2 Visa or How to Sponsor a Foreign Worker (Coming From Outside the U.S.) for an E-2 Visa.

The business's primary role will be to prove that it is an active, bona fide enterprise with a plan for profitability. Your main role will be to prove that you are making a substantial investment in that business, using money from a legitimate source, as well as to prove family relationships with any spouse and children who will be accompanying you (i.e. marriage and birth certificates) and to pass various security checks and show that you are not inadmissible to the United States.

If you're coming from overseas, you'll need to fill out State Department forms DS-160 and DS-156E. If you're coming from the United States, USCIS Form I-129 is the primary application that the employer or you will fill out and submit to USCIS.

For the final step in the process of coming from overseas, be sure to see The Day of Your Consular Interview for a U.S. Visa.

You'll find further details in 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 for help with the application process and interacting with U.S. government officials.