How to Sponsor a Foreign Worker Who's Already in the U.S. for an E-2 Visa

The application process is completely different when seeking a new status for a prospective E-2 worker in the U.S. rather than applying for an entry visa.

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

Once an employer determines that the business and prospective employee can meet the E-2 eligibility requirements, it needs 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 How to Sponsor a Foreign Worker (Coming from Outside the U.S.) for an E-2 Visa.)

Filing a Nonimmigrant Worker Petition With USCIS

An employer 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 is USCIS's Petition for a Nonimmigrant Worker, Form I-129. It consists of several 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 the employer to set forth the E-2 qualifying characteristics of the business and prospective employee.

USCIS publishes instructions for Form I-129, but since it is used for all types of nonimmigrant worker petitions, the instructions for any one type can be 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 an employer can submit to establish that the 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 list of supporting documents could cover all types of E-2 eligible businesses. What documents a business presents depends on its nature. 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 a business, it will need to submit evidence that the 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 the documents and how they satisfy the E-2 requirements.

Filing Fees and Locations

The USCIS petition fee is $460 (2020 figure). It is ordinarily paid by a check or money order made out to the U.S. Department of Homeland Security and submitted along with the petition. (A credit card can be used only when submitting to a USCIS lockbox, but the I-129 goes to a regular USCIS service center.)

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. As of late 2020, the I-129 was not among the forms that could be filed online.

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

USCIS typically grants E-2 status for an initial term of two years. If the prospective E-2 hire contemplates travel outside the U.S. during the first two years of employment, consular processing might make the most sense from the beginning, even where a USCIS petition is possible.

This is because the 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 needs 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 How to Sponsor a Foreign Worker (Coming from Outside the U.S.) for an E-2 Visa.)

What's 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 one can tear off the bottom portion, the I-94 card, and give it to the employee to serve as evidence of status. The employer and 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, the employer 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 normally be admitted with a two-year period of stay on entering the United States. Since the visa itself is typically issued for a five-year term, the visa-holding employee will have an alternative to a USCIS petition for extending status, namely 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.

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