• E2 Treaty Investor
  • December 10, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction

    The E-2 (E2) Treaty Investors visa is a nonimmigrant visa for certain nationals of countries with which the United States maintains a treaty of commerce and navigation. The E2 visa is available for investors and for employees of E2 treaty investors or companies that, by virtue of their ownership and operations in the United States, can qualify as E2 petitioners. This article will provide a brief overview of the E2 visa category.

    Eligibility for an E2 Visa


    The eligibility requirements for an E2 visa as a treaty investor and an E2 visa as an employee of an E2 treaty investor are slightly different. However, in both cases, the alien applicant must be the national of an E2 treaty country (follow this link for a chart of qualifying countries). To learn about interesting rules regarding dual nationals seeking change to E2 status, please follow this link.

    Eligibility Requirements for Investors

    Department of State (DOS) regulations[1] require that an applicant for an E2 visa as an investor must meet the following requirements:
    • (i) Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and
    • (ii) Is seeking entry into the United States solely to develop and direct the enterprise; and
    • (iii) Intends to depart from the United States upon the termination of E2 status.
    In order for an investment to qualify, the applicant must place his or her capital “at risk in the commercial sense with the objective of generating a profit.”[2] This regulation precludes non-profit organizations from qualifying.[3] The investment must be “substantial” relative to the size of the commercial enterprise and to demonstrate the investor’s commitment to the enterprise.[4] The enterprise must be a “bona fide enterprise” that is a real and active commercial or entrepreneurial undertaking that is producing a service or commodity for profit.[5]

    The “develop and direct requirement” is usually satisfied by the investor showing that he or she controls at least 50% of the enterprise.[6] It is possible to satisfy the requirement with less than 50% ownership, but this requires substantial evidence demonstrating that despite not having a controlling ownership state, the investor will have the capacity to develop and direct the enterprise.[7]

    The E2 visa category permits dual intent. In general, an applicant’s unequivocal intention to depart upon the termination of E2 visa status will satisfy Consular officials. An applicant may obtain or renew an E2 visa even if he or she is the beneficiary of an approved labor certification application.[8]

    Eligibility Requirements for Employees of Treaty Investors


    First, the alien must be the employee of a treaty investor and be of the same nationality as the treaty investor. In accordance with DOS regulations,[9] the following may qualify as employers of an E2 employee:
    • (i) A person having the nationality of a treaty country, who is maintaining the status of treaty investor if in the United States, or, if not in the United States, who would be classifiable as a treaty investor; or
    • (ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors.
    If the employer is in the United States, he or she must be in E2 status as a treaty investor. If the employer is outside of the United States, he or she must be otherwise classifiable as an E2 treaty investor. The ownership stake of a lawful permanent resident (LPR) or U.S. citizen may not be counted, even if the LPR or U.S. citizen is the national of a treaty country.[10]

    If the E2 enterprise is owned 50/50 by nationals of two treaty countries, the E2 employee may be a national of either one of the treaty countries.[11]

    Provided the alien is the national of the same country as a qualifying E2 employer, he or she must be seeking to enter the United States to work for the treaty enterprise in a:
    • Executive and Supervisory Character;
    • Special Qualification/Essential Employee Capacity.
    Please refer to the section-header link to learn more about the specific evidentiary requirements for working in an executive and supervisory character and working in a special qualification/essential employee capacity.

    “Job shop” employment, where the treaty enterprise would pay the E2 employee to work at another U.S. company, is strictly prohibited under E2 status.[12]

    Just as is the case with persons applying for E2 visas as treaty investors, the “intent to depart” may be established even if the employee is the beneficiary of an immigrant visa petition.[13]

    Application Process

    A person applying for change to E status must file a Form I-129 along with an E Supplement. A person filing for an E visa from a Consular post abroad must file a DS-160 visa application along with a DS-156E supplemental form. The validity period of an E visa will depend on the specific treaty country, but will be, in most cases, 5 years.

    Admission on E Status


    A person may be admitted for an initial period of up to 2 years on E status.[14] Prior to the expiration of 2 years, an E2 treaty investor or employee may file a Form I-129 with E Supplement to apply for an extension of stay, which if granted, may be granted for a maximum of 2 years.[15] Provided that the E2 visa holder continues to meet all of the E2 eligibility requirements, there is no limit to the number of extensions of E status.

    E2 visa holders may only engage in employment that is consistent with what the E2 visa was approved for.[16] E2 employees may perform work for a parent or subsidiary of his or her E2 employer provided that the qualifying relationship existed at the last approval of the E2 visa, the work requires an executive, supervisor, or essential skill position, and the work is consistent with the work that the E2 employee obtained an E2 visa to perform.[17] Caution should be exercised however, and in the case of a substantial change in employment, an emended Form I-129 with new E Supplement is required to maintain E status.[18]

    If there is ever uncertainty for an E2 treaty investor or an E2 employee about whether an amended petition is needed, a Form I-129 with fee along with a complete description of the change may be filed in order to request advice from United States Citizenship and Immigration Services (USCIS) about whether an amended petition is needed.[19]

    Derivative E2 Family Members


    Spouses and children of E2 visa holders who are otherwise admissible are eligible for derivative E2 visas.[20] A derivative E2 may be admitted for the same duration as the principal (so long as the qualifying relationship continues to exist). Although derivative E2 visas do not authorize employment incidentally to status, an E2 spouse may apply for employment authorization.[21] E2 derivative children may not obtain employment authorization, but may attend school while on E2 status.[22]

    Conclusion

    The E2 visa is a strong option for those who are eligible in part because there are no limitations on the number of extensions of stay that an E2 visa holder may obtain.

    However, the E2 visa is not the best option for everyone. Those who are seeking to invest in a U.S. enterprise should discuss all of his or her options with an experienced immigration attorney in investment immigration matters in order to determine whether the E2 visa is the best option for meeting his or her investment goals. The investment immigration section of our website discusses E2 visas and many other investment immigration options.

    Persons seeking to employ a person should consult with an experienced immigration attorney to consider all of the available options. In some cases, a different nonimmigrant work visa, or even animmigrant employment visa, may be more appropriate.

    Please read our comprehensive articles to learn more:

    For Investors:

    http://myattorneyusa.com/immigration-law-and-practice/immigration-to-the-usa/investment-immigration/e2-treaty-investors-visa

    For Employees:

    http://myattorneyusa.com/immigration-law-and-practice/immigration-to-the-usa/investment-immigration/e2-employees-of-treaty-investors

    Interesting Issues to Consider for Adjustment of Status from E2 to an Employment-Based Preference Category:

    http://myattorneyusa.com/immigration-law-and-practice/immigration-to-the-usa/perm/the-effect-of-modular-container-systems-on-labor-certification
    1. 22 C.F.R. § 41.51(b)(1)(i)-(iii)
    2. 22 C.F.R. § 41.51(b)(7);
    3. 9 FAM 41.51 N8.1-2
    4. 9 FAM 41.51 N10.2
    5. 22 C.F.R. § 41.51(b)(8)
    6. 22 C.F.R. § 41.51 (b)(11)
    7. 9 FAM 41.51 N12
    8. 9 FAM 41.51 N15
    9. 22 C.F.R. § 41.51(b)(2)
    10. 9 FAM 41.51 N14.1
    11. 9 FAM 41.51 N3.3
    12. 9 FAM 41.51 N13.1; Letter, Lorr, Acting Chief, Benefits Division, INS, HQ 70/6.2.5-6 (Aug 28, 1996), reprinted in 73 No. 37 Interpreter Releases, 1290, 1311-14 (Sept 30, 1996)
    13. 9 FAM 41.51 N15
    14. 8 C.F.R. § 214.2(e)(19)(i)
    15. 8 C.F.R. § 214.2(e)(20)
    16. 8 C.F.R. § 214.2(e)(8)(i); Matter of Laigo, 15 I&N Dec. 65 (BIA 1974)
    17. 8 C.F.R. § 214.2(e)(8)(vii)
    18. 8 C.F.R. § 214.2(e)(8)(iii)
    19. 8 C.F.R. § 214.2(e)(8)(v)
    20. 8 C.F.R. § 214.2(e)(4); 22 C.F.R 41.51(b)(3)
    21. INA § 214(e)(6); Cable, DOS, 02-State-17328 (Jan. 29, 2002), published on AILA InfoNet at Doc. No 02013032
    22. IFM §§ 15.4(e), 15.5(d)