The E-2 visa (not to be confused with EB-2 Green Card) is an investment based visa only offered to nationals of certain countries that maintain this treaty relationship with the United States. This visa is only available to nationals of 80 participating countries who invest a substantial amount into a U.S. enterprise. Different countries are subject to various E-2 regulations and require different procedural steps to apply. The E-2 visa is good for up to two years at a time with no limit on the number of extensions allowed. Once an E-2 investor is approved the business can also petition for E-2 specialized workers from the same country. The E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States.
Dependents of E-2 investors and workers qualify for E-2 status regardless of their nationality. Unlike many dependent category visas, E-2 spouses can also apply for work authorization. The E-2 visa is a popular precursor status for investors who wish to eventually gain permanent residence through an EB-5 Green Card . The EB-5 is also investment based, but has different investment criteria and is subject to numerous additional requirements. Consult with your immigration attorney as soon as possible if you are considering the E-2 → EB-5 pathway because the E-2 business structure and location(s) should be curated with the future EB-5 in mind.
E-2 Investor Qualifications:
To qualify for E-2 classification, an investor must be a national of a designated treaty country. The U.S. State Department maintains a list of immigration treaty countries, some subject to country specific regulations. Your attorney can check to see if and how your nationality qualifies for E-2 status. A qualifying investment must be made into a legitimate enterprise in the United States, whereby the enterprise is at least 50% owned or controlled by one or more investors of the same treat country nationality.
There is no legal provision regarding the minimum investment, but the higher the investment dollar figure the better. A minimum of $100,000.00 is recommended, which is much lower than the EB-5 minimum. For purposes of E-2 eligibility, the investment must be “substantial,” which considers the investment in relation to the total value of the company. Adjudicators must determines if the amount is sufficient to ensure the investor’s financial commitment to the management, operation, and development of the enterprise. The lower the cost of the enterprise, the higher in proportion the investment must be to be considered substantial.
E-2 investment capital can take many forms as long as it is irrevocably committed, or put “at risk” of commercial loss with the goal of becoming a profitable business. If structured correctly, capital can be considered irrevocably committed by placing it in escrow with a third party. The investment can be cash, assets, inventory, equipment, loans and even promissory notes. Be sure to maintain proof of fund transfer(s), repayments and satisfaction of related debt(s), and evidence of the legal source of invested capital. Legal source of funds merely means that the investment capital is not from criminal activity. The law permits capital to be sourced from gifts or loans, sometimes even from the original owner of an enterprise.
A qualifying E-2 investment requires a bona fide and marginal enterprise. Bona fide means real, active, and operating to produce goods or perform services for a profit. Listing a residential address for the business is a major red flag that may result in denial because the government tends to dismiss these types of business as not legitimate. An enterprise cannot be marginal, meaning that it must have the capacity to produce profits in the future that are more than merely a minimal living for the treaty investor. Not all E-2 businesses must be profitable at time of application, but they should demonstrate that they will become more than marginal within five years of the investor gaining E-2 status.
An immigration attorney should assess and advise your company’s personnel structure to develop an organizational chart to will avoid a finding of marginality. The E-2 visa is issued to investors who intend to direct and develop the newly purchased enterprise. A company with zero employees other than the investor will present problems. The absence of any employees to be “directed” could lead an adjudicator to determine that the investor isn’t truly coming to “direct” the enterprise. More so, the lack of employees could lead an adjudicator to infer the enterprise is marginal. Consult your immigration attorney early in the business development and formation process to ensure your company will be well postured for the E-2 visa classification.
E-2 Employee Qualifications:
The E-2 investor’s qualifying company can apply to hire certain employees who are of the same treaty country nationality as the E-2 investor. These must be payroll employees of the E-2 company and cannot be independent contractors. Importantly, E-2 employees must be either executive, supervisory, or possess essential skills needed by the E-2 company. Duties are considered executive or supervisory if the employee is given ultimate control and responsibility for the organization’s overall operation, or at least a major component of it. Alternatively, an E-2 can be issued for employees with special skills or qualifications that make the employee essential to the efficient operation of the company. Similar to other skilled employment categories, a foreign language skill does not satisfy this requirement on its own merits. Conversely, an employee skilled in a proprietary technique or process of the company will be a strong candidate for an E-2 essential employee visa. The essentiality of a candidate is a fact driven analysis with factors such as:
- The degree of proven expertise in the employee’s area of operations;
- Whether others possess the employee’s specific skills;
- The salary that the special qualifications can command;
- Whether the skills and qualifications are readily available in the United States.
While E-2 investors can only work for the company they invested in, E-2 employees are allowed to work for parent or subsidiary entities of the E-2 company as long as they continue to be in executive, supervisory, or essential positions. Consult your immigration attorney to determine whether a corporate restructure or reassignment of an E-2 employee is a material change that requires a new petition.
E-2 Dependents:
Spouses and dependents (under 21) of E-2 treaty investors and employees also qualify for E-2 status. They can accompany or follow the principal E-2 if processing at a consulate, or they can apply through the USCIS with an I-539 if already in the United States. The nationalities of E-2 dependents do not need to be the same as the treaty investor or employee, nor do they even need to be on the State Department’s list of E-2 countries. These family members are generally granted the same period of stay as the employee or investor. Unlike most dependent categories, spouses of E-2 workers qualify for work authorization, and must file Form I-765 to take advantage of this benefit. Unlike the E-2 investor or employees, E-2 spouses can work for any employer when they receive their Employment Authorization Document (EAD), and they can even change jobs without giving notice to the USCIS while the EAD is valid.
Note that E-2 holders are generally given automatic two-year extensions of their authorized period of stay when they reenter the United States after international travel. This is simple and convenient if and when the family members accompany the E-2 investor or employee and they seek readmission together. But if they are not traveling together when the investor or employee reenters the United States the new period of authorized stay will not apply to the family members. E-2 dependents must be aware of and apply to extend their own E-2 validity periods to maintain lawful status.
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