How to Satisfy US E-2 Visa Requirements
The E-2 Treaty Investor visa is for non-US nationals to enter and work in the United States on the basis of a qualifying investment in an eligible enterprise. Although an attractive route for many entrepreneurs, the E-2 visa requirements are strict and applicants must ensure the requirements are fully satisfied to avoid a refusal and for the visa application to be successful.
What is the E-2 Treaty Investor visa?
The E-2 Treaty Investor classification is a temporary non-immigrant visa for nationals of countries with which the United States has a treaty of commerce and navigation, to invest a substantial amount of capital into a US business.
The E-2 visa allows an initial stay of up to 2 years; however you can apply for extensions to this in increments of up to 2 years, and there is no maximum limit of extensions that can be applied for provided you and the enterprise continue to satisfy the E-2 visa requirements.
Who can apply for the E-2 visa?
You can apply as a treaty investor, an employee of the investor, or as the dependent family of the treaty investor or employee.
Importantly, the enterprise itself must also apply for E-2 Treaty Investor Registration.
The E-2 visa requirements if you are applying as a treaty investor require that you;
- Are a national of a country the US maintains a treaty of commerce and navigation.
- Have, or be in the process of, investing a substantial amount of money into an enterprise.
- Are wanting to enter the US only to develop and direct the E-2 enterprise.
Qualifying Treaty Countries
You will need to ensure you are a national of an E-2 Treaty country. There are currently over 80 countries that the US Department of State lists as having a treaty of commerce and navigation.
What is considered a substantial capital investment is not fixed and can vary considerably. It is a subjective requirement, depending largely on the nature of your enterprise. For example, a consultancy practice is likely to see a lower investment amount required compared to a manufacturing company since the set up costs associated with becoming operational are considerably greater for the latter.
You will also need to evidence that there is an at-risk element to the investment and that the investment funds have come from a legitimate source.
You will need to evidence that your investment qualifies through supporting documentation and a robust business plan.
How to prove your intention for entering?
You can prove your sole intention for entering is to develop and direct the enterprise by showing you have 50 percent minimum ownership of the business, with operational control and management of the enterprise.
What is a marginal business?
The enterprise must also not be deemed a ‘marginal undertaking’. You must demonstrate through the application that the enterprise has the potential and capacity to support more than just you as the E-2 investor and your family – there will need to be a broader, positive economic impact including job creation opportunities for resident US workers.
The E-2 visa requirements if you want to apply as an employee require that you:
- Be the same nationality of the primary employer (who must be a national of the Treaty country).
- Meet the definition of an employee under the relevant law.
- Either be in an executive or supervisory role within the E-2 business or hold special qualifications.
What is an executive or supervisory role?
An executive role refers to a position in which you have the authority to make policy and influence the direction of the enterprise.
A supervisory role is one in which you have overall supervisory authority over the enterprise – basic supervision of junior employees would not be sufficient for the E-2 requirement.
What are special qualifications?
What would be considered a special qualification will be specific to the circumstances, however as a rule of thumb the qualification will have to be critical to the running of the business. The applicability of this criteria may change as the busienss develops. For example, qualifications critical to the set up of the business may no longer be deemed necessary once the business is operational. This could impact future applications to renew the E-2 visa on the basis of a special qualification.
While the E-2 visa permits you to carry out business in the US, how that work is performed and the employment freedoms you obtain through this visa are restricted.
You must only work in the approved capacity as per the visa, and you cannot obtain employment unconnected to the treaty enterprise. An employee may be able to work for the treaty enterprises’ connected subsidiaries so long as they retain the supervisory or specially qualified status as initially permitted, and the terms of employment have not changed. Anything beyond this is subject to approval from the United States Citizenship and Immigration Services (USCIS).
This restriction does not apply to spouses of E-2 workers, who can apply for separate permission and will not be restricted as to where they can work.
How to apply for the classification?
The E-2 application process can differ between Consulates so it’s recommended to take advice on the specific process for the Embassy in your home country or the country where you will be making your E-2 application.
In general, you will need to submit evidence of your nationality and proof of business ownership, and lists of any other investors and their nationalities.
You will also need to provide evidence of your substantial investment such as:
- Goods & equipment purchased
- Business bank accounts
- Statements of net worth
- Articles of incorporation
If you are applying as an employee, the evidence you must provide includes certificates, diploma and employers’ letters stating job title, duties etc.
The evidentiary requirements are extensive and will be determined by the nature of your enterprise and your personal and financial circumstances. Issues with your application form and documentation are likely to result in delays or even refusal of your visa, and potentially loss of fee. And since you are required to have already made investment prior to the application, it will be important to avoid any potential for financial loss resuting from a failed application. Take advice on how to build a comprehensive suite of documents to support your case.
Things to consider
Applying for a non-immigrant E-2 investment visa allows you to operate your enterprise within the US for a potentially indefinite period of time; however the visa does not permit you permanent residence, and as such, you will need to continue to renew in advance of your current visa expiry.
If you are the employee of a treaty investor, you may be refused renewal of your visa if your special qualifications are no longer deemed special by the USCIS, and you are restricted to carrying out the work you were originally permitted entry into the U.S. by the visa to do.
Spouses and unmarried children (under the age of 21) of the E-2 investor or employee (including same-sex couples) can apply to join the main E-2 applicant. Unlike employees, their nationalities do not need to be the same as the investor or employee. Periods of stay are the same for families as they are for investors and employees.
Spouses can apply for an Employment Authorisation Document using Form I-765 and children can study within the US up to post-secondary education until the age of 21 as long as they remain unmarried.
Do you have a question about the E-2 Visa Requirements? NNU can help!
Applying for, and fulfilling the E-2 visa requirements is demanding on applicants, notably the need for strong supporting documentation and the E-2 business case to put forward your case.
NNU Immigration have extensive experience in E-2 visa applications. We can advise on eligibility and building a comprehensive application that satisfies the E-2 visa requirements and optimises your prospects of being granted the visa. We also specialize in E-2 visa renewals and application refusals.
For advice about your E-2 visa application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.