The E-2 visa, or treaty investor visa, is a non-immigrant visa that allows foreign nationals to enter and work in the United States based on an investment they will be controlling while in the U.S. This visa category is particularly beneficial for entrepreneurs and investors from countries with which the United States maintains a treaty of commerce and navigation or a Bilateral Investment Treaty (BIT).

Key Requirements for E-2 Visa Eligibility

Treaty Requirement:

• Qualifying Treaty: There must be an existing treaty of commerce and navigation or a BIT between the United States and the applicant's country of nationality. Only nationals from these treaty countries can apply for an E-2 visa.

Nationality:

• Applicant’s Nationality: The investor, whether an individual or a business entity, must hold the nationality of the treaty country.

Investment:

• Substantial Investment: The applicant must demonstrate a substantial investment in a real and operating commercial enterprise in the U.S. The investment must be significant enough to ensure the successful operation of the enterprise. Marginal enterprises, those that do not generate more than enough income to provide a minimal living for the investor and their family, do not qualify.

• Active Investment: The capital invested must be at risk and committed to the enterprise. Loans secured with the assets of the investment enterprise are not considered at risk.

Role in the Business:

• Develop and Direct: The E-2 visa applicant must be coming to the United States to develop and direct the enterprise. This means the investor must have a controlling interest in the business or be in a managerial or executive position. Essential employees with specialized skills may also qualify under this category.

Intent to Depart:

• Nonimmigrant Intent: Applicants must demonstrate intent to depart the United States once their E-2 status ends. However, unlike some other visas, E-2 applicants do not need to maintain a foreign residence.

E-2 Visa Benefits

Renewable:

• Indefinite Renewability: The E-2 visa can be renewed indefinitely in two-year increments, as long as the enterprise continues to operate and the visa holder continues to meet the visa requirements. This is in contrast to the L-1 visa, which has stricter limitations on renewals.

Family Benefits:

• Spouses and Children: Spouses and unmarried children under 21 can accompany the E-2 visa holder to the United States. Spouses are eligible to apply for work authorization using Form I-765, enabling them to work in the U.S. Both spouses and children may also attend school.

The Application Process

Applying from Abroad:

• Consular Processing: E-2 visa applications are typically submitted at a U.S. consulate or embassy in the applicant's home country. The application process involves an interview and requires substantial documentation proving the investment and the operational status of the business.

Applying from Within the U.S.:

• Change of Status: Individuals already in the U.S. on a different nonimmigrant status may apply to change their status to E-2 through USCIS. However, this change of status does not equate to a visa, and an E-2 visa must still be obtained from a U.S. consulate or embassy for re-entry into the United States after travel abroad.

Documentation and Evidence:

• Required Documents: Applicants must prepare comprehensive documentation, including proof of nationality, evidence of substantial investment, detailed business plans, and evidence of the applicant's role in the business. Additional requirements may vary depending on the specific consulate or embassy.

Important Considerations

Marginal Enterprises:

• Non-qualifying Businesses: Businesses that only provide a minimal living for the investor and their family do not qualify. The enterprise must have the capacity to generate significantly more income than just to provide a living for the investor and their family.

Essential Employees:

• Specialized Skills: Certain essential employees who possess skills critical to the success of the business may also qualify for E-2 visas. These employees must have the same nationality as the principal E-2 investor and must be employed in a supervisory, executive, or essential skill capacity.

Maintaining Status:

• Continued Compliance: To maintain E-2 status, the investor must continue to meet all eligibility criteria, including maintaining the investment and continuing to develop and direct the enterprise. Regular renewals require demonstrating that the business is still operational and profitable.

Final Thoughts

The E-2 visa offers a unique opportunity for foreign investors and entrepreneurs to live and work in the United States while managing their investments. However, the application process can be complex, and ensuring that all criteria are met is crucial for success.

If you are considering applying for an E-2 visa, consulting with an experienced immigration attorney can provide valuable guidance and increase your chances of a successful application. Contact our office today to learn more about how we can assist you with your E-2 visa application and help you achieve your business goals in the United States.