What is an E-2 Treaty Investor Visa?

The E-1 (treaty trader) and E-2 (treaty investor) visa categories arose in connection with bilateral treaties of commerce (including Treaties of Friendship, Commerce and Navigation (“FCNs”) and Bilateral Investment Treaties (“BIT”)) between the US and the country of which the treaty trader or investor is a citizen or national. A list can be found at US Department of State. These visas enable investors, traders and their employees to enter the United States on a non-immigrant basis to trade or invest, provided they are a member of a treaty country and satisfy the relevant criteria.

Do I qualify for E-2 Treaty Investor Status?

In order to be considered eligible for an E-2 Treaty Investor visa, you must:

1. Be a national of a treaty country

If you are a company, a minimum of 50% of the shares/membership interests must be owned by natural persons holding the nationality of the treaty country. If you are an employee of a treaty trader company, you must share the nationality of your company.

To determine the nationality of your company, you must consider, inter alia, the following factors:

  •  The nationalities of stock holders;
  • Percentage of stock owned by nationals of a treaty country;
  • If the company is publicly traded, where it is listed and whether it is listed solely on one exchange; and
  • Whether members hold US lawful permanent residency.

2. Enter for the purpose of directing the operations of an enterprise in which you have invested, or are actively in the process of investing a substantial amount of capital in the United States.

Risk
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk – with a profit objective – and such capital must be subject to loss if the investment fails.

Commercial and Active Investment
Investment must be active; passive investment in stocks and undeveloped land is not permitted. The enterprise must be commercial therefore non-profit organizations will not qualify.

Substantial
The substantiality of the investment is judged by the relative/proportionate test. It is a weighing exercise in which the ratio of funds invested is compared to the total costs of creating or purchasing the enterprise. However as relates to SME’s, where the total investment to create or purchase the business is low, a higher percentage of investment is required.

For how long is an E-2 Treaty Investor visa granted?

It depends on your country of origin. With a strong application, British citizens are generally granted for 5 years but can be approved for as little as 2 years.

Can I bring my family?

Yes – your spouse and children (under 21 years) can also obtain E-2 visas. The basis for their eligibility is their relationship with you, the principal E-2 holder.

Can my family work and study?

Your spouse can work (upon successful application made after entry) and/or study and your unmarried children under the age of 21 can study without requiring an F-1 Student Visa. Employment Authorization will need to be obtained before a spouse may work. Children can attend school and university/college without further action.

What are the benefits of E-2 Treaty Investor visas?
  • Duration
  • Processing time and cost
  • Appropriate for new businesses
  • Generally afforded longer to build business than other categories
  • Staffing requirement lower than L-1
  • No prior employment at foreign company required
What are the limitations of E-2 Treaty Investor Visas?
  • Investment requirement
  • Must grow business for renewal
  • One-person businesses are inappropriate
Where do I file?

There are two ways of filing for E-2 – change of status and consular processing. If you are not already lawfully present (in lawful status) in the US, change of status will not be available to you. If you are present in the US, call us to discuss the best option for you.

Is there a direct route to obtaining a green card through an E-2 Visa?

There are no direct routes to obtaining a green card but it is possible that you may qualify for lawful permanent residency through EB-1C, EB-5 or other options depending on the features of your circumstances.

Which employees can obtain E-2 visas?

Employees must:

  • Have the same nationality as the treaty employer; and
  • Either be employed in a position which is executive or supervisory in nature; or
  • Be an essential employee, in a non-supervisory role, with special qualifications.

What is an Executive/Supervisor?
In establishing whether an applicant is employed in an executive or supervisory role, relevant factors include control and responsibility.

What is an Essential Employee?
In determining whether an employee is “essential”, the relevant factors for consideration include but are not limited to: employee’s degree or proven expertise; uniqueness of skills to the particular organization; commanded salary; and availability of US workers.