E-2 (Treaty Investor)
The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no limit to the number of extensions of an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
A current list of countries with which the United States maintains a treaty of commerce and navigation can be found at: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
General Qualifications of a Treaty Investor
- Be a national of a county with which the United States maintains a treaty of commerce and navigation;
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of the operational control through a managerial position or other corporate device.
Investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.
A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower cost of the enterprise, the higher proportionately, the investment must be to be considered substantial.
A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
General Qualifications of the Employee of a Treaty Investor
To qualify for E-2 classification, the employee of a treaty investor must:
- Be the same nationality of the principal alien employer (who must have the nationality of a treaty country);
- Meet the definition of “employee” under relevant law; and
- Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must either: (a) be maintaining nonimmigrant treaty investor status or (b) if the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.
Duties that are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation, or a major component of it.
Special qualifications are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the treaty enterprise. There are several qualities or circumstances that could, depending on the facts, meet this requirement. These include, but are not limited to:
- The degree of proved 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 qualification are readily available in the United States.