Everything You Need to Know About the E-2 Visa

E-2 visa is a non-immigrant visa for investors, entrepreneurs, and people looking to run a business in the United States. With an E-2 visa, you can start a US business or invest in an existing business and operate that business.

The E-2 visa is only available to people from certain countries that have an E-2 treaty with the United States.

There is no limit to the number of times the E-2 visa can be renewed. As long as the E-2 business continues to operate and meet the E-2 visa requirements, an E-2 visa holder can continue to renew their visa and live and work in the United States.

E2 Visa Requirements

There are 9 main requirements to qualify for an E-2 visa:

(1)  Requisite treaty exists;

(2)  Individual and/or business possess the nationality of the treaty country;

(3)  Applicant has invested or is actively in the process of investing;

(4)  Enterprise is a real and operating commercial enterprise;

(5)  Applicant's investment is substantial;

(6)  Enterprise is more than a marginal one solely for earning a living;

(7)  Applicant is in a position to "develop and direct" the enterprise;

(8)  Applicant, if an employee, is destined to an executive/supervisory position or possesses skills 

essential to the firm's operations in the United States

(9)  Applicant intends to depart the United States when the E-2 status terminates. 

Тo get an Investor visa you must meet all 9 requirements. Below we will explain them in detail.

1. You must be a national of a country with an E-2 treaty with the United States.

For the list with the countries participating under the E-2 Treaty select Treaty Countries

2. Individual and/or business possess the nationality of the treaty country;

You must be a national of a country that has a qualifying treaty with the United States.

To qualify for E-2, the business must be at least 50% owned by nationals of the treaty country.

If less than 50% of the business is owned by nationals of the treaty country, it may still qualify for E-2 if the business is restructured so that treaty nationals own at least 50% of the business.

3. Applicant has invested or is actively in the process of investing;

The source of your investment funds must be lawful.

You must explain how the funds used in the investment were acquired or accumulated. It can be in the form of a statement or by showing appropriate documentation.

Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.

Loans secured with the assets of the investment enterprise are not allowed. 

Inheritance of a business does not constitute an investment.

The investor must have control of the funds, and the investment must be at risk in the commercial sense. 

Applicant must show that all purchased goods are for business not personal use.

Purchased equipment and inventory as well as payments for leases of property or equipment may be calculated as investment. 

Your investment must be irrevocably committed to the E-2 business and must be at-risk. It means that your investment funds should actually be spent toward the business and should not just be sitting in your operating account.

4.  Enterprise is a real and operating commercial enterprise;

It must provide a good or a service. It cannot be a paper organization or an idle speculative investment.

Nonprofits do not qualify.

If not yet in business, the applicant should be close to the start of actual business operations.

5. You must make a substantial investment in a US company.

The regulations do not specify a minimum investment amount that qualifies as substantial. Instead, a proportionality test is used to determine whether an investment is substantial or not.

The proportionality test compares 2 numbers: the amount of money you actually invest in your business and the total value of the business.

To determine if your investment is substantial or not, the immigration official working on your case will calculate the proportion between how much you actually invested in the business to the total value of the business.

• For businesses with a lower value, your investment should be a very high percentage of the total value of the business. 

• For businesses with a very high value, your investment may be a lower percentage of the total value of the business.

There are no exact percentages used to determine what is substantial. let's look over the example:

• If the total value of your business is let say $50,000 or less, your actual investment should be close to 100% of the total value of the business, to be considered substantial.

• On the opposite end of the spectrum, if the total value of your business is very high (for example $5,000,000), an investment of $1,000,000 would very likely be considered substantial even though proportionately it is only 20% of the total value of the business.

6 The business that you invest in cannot be considered a marginal enterprise;

A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and their family.  

An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the applicant commences normal business activity of the enterprise.

Things to remember:

The enterprise should (1) generate enough income to provide more than a minimal living for the treaty investor and their family or (2) to have the future capacity to provide such living,

OR

It must have (3) a present or (4) future capacity to make a significant economic contribution.

It should make a “significant economic contribution” within five years as measured by hiring of employees, purchase of US goods, profits, etc. 

7. You must be entering the United States to direct and develop your E2 business.

As an E-2 investor, you are required to seek entry into the United States for the sole purpose of directing and developing the E-2 business.

You can satisfy this requirement by showing that as the E-2 investor, you own at least 50% of the E-2 business.

You have operational control of the business by having a managerial position within the business.

You cannot be a passive investor and qualify for an E-2 visa.

If two parties own equal shares in the business entity (50/50), they can still meet the “direct and develop” requirement. Both parties must have full management rights and responsibilities.

8. Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United States;

This requirement allows a noncitizen to get an E-2 visa through employment with an E-2 business enterprise. Аnd the employer is under no obligation to file a petition with USCIS on behalf of th worker.

Only 3 classes of employees can get an E-2 visa, employed by the same E-2 enterprise:

1. Executive Employees;
2. Supervisory Employees;
3. Employees with special skills that are essential to the E-2 Enterprise. Ordinary skilled and unskilled workers do not qualify.

Employer, if not a resident abroad, must be maintaining “E” status in the United States.

Convincing evidence must be provided to show that a foreign national is at crucial inportance for the company to operate effectively. This may include documents showing the essentiality and qualifications of a head, manager or executive, or otherwise special qualifications essential to the enterprise. 

Helpful documents:

Letter from E-2 enterprise providing specific information on the applicant and the reasons for their assignment to the U.S. The letter must explain the employee's role in the U.S. company (job title and duties), the applicant's executive or supervisory responsibilities or, if not a supervisor, their unique  role, the level of education and knowledge required by the employee's position.

E2 employees do not have to show that they are seeking entry into the United States to direct and develop the E-2 business.

9. You must have the intent to depart the United States once your E-2 status ends.

Usual way this requirement to be satisfied is by submitting a signed statement that shows E-2 visa applicant's intention to depart U.S. once the E-2 status ends.

Consular Processing/ E-2 Visa Application

When you have finished gathering the necessary documentation, you must complete the DS-160 Form (Online Nonimmigrant Visa Application Form), to pay the E-2 visa application fee and to send (mail or email) your application documentation to the U.S. Consulate of your home country.

Please note that different consulates have different requirements on the types of the required application documents and how the documentation package is to be organized and presented. 

Also, most U.S. Consular Sections around the world do not accept third country nationals and you may likely need to go through your national country’s U.S. Consular Section.

A Form DS-156E (Nonimmigrant Treaty Trader/Investor Application) must be completed too. This form provides additional information about the company and the Investor. 

We may help you with completing and submitting your E-2 Investor Visa application and supporting documentation directly to the appropriate consulate and to assist you with the visa interview scheduling.

Change of Status in the USA

If you are legally in the USA on a nonimmigrant status, you may apply for a Change of Status to an E-2 Investor status. You may do this by filling an I-129 (Petition for Change of Status with USCIS) Form.

E-supplement of this form must be completed too. 

Changing status through USCIS takes about 6 to 8 months. If you are run out of time you may wish to file a Form I-907 (Request of Premium Processing Services) to request faster processing of your application. It will speed up the process and reduce the total processing time to 15 business days, but you must pay an additional premium processing fee. 

If you have dependents, such as a spouse and children, who will be included in your Change of Status application, an additional Form I-539 Extend/Change Nonimmigrant Status must be completed on their behalf.  

The completed application form must be submitted to USCIS, along with a copy of biographic page of your passport. 

Upon approval of your Change of Status, you will receive E-2 status with a date through which it is valid.

E-2 Visa / Change of Status Fees are subject to constant changes. You may email or contact us for exact information. 

Duration of Stay in the United States on an E2 Visa

The length of time your E-2 Visa is valid for depends on the country issuing the visa. The period of visa validity generally ranges from 3 months to 5 years.

If your E-2 visa is valid for 5 years, this does not mean that you can stay in the U.S. for 5 years at a time. Your status (not your visa) determines how long you can stay in the U.S. at any one time.

With an E-2 visa, you are generally granted 2 years of status each time you enter the U.S.

With a valid multiple entry E-2 visa, you can exit and re-enter the U.S. to get an additional 2 years of status.

You can continue to renew your E-2 visa as long as your company meets all the E-2 visa requirements.

E-2 Family Members 

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.

If the family members are already in the United States and are seeking Changes of Status to or extensions of stay in an E-2 dependent classification, they may apply by filing a single Form I-539, Application to Change/Extend Nonimmigrant Status, with fee.

E spouses are considered employment authorized incident to status and they are not required to request employment authorization by filing Form I-765, Application for Employment Authorization, but may still file Form I-765, with fee, in order to obtain an Employment Authorization Document (Form I-766 or EAD). 

Unlike the principal E-2 investor, who is only allowed to work for his E-2 visa company, the E-2 visa spouse is not limited in the type of company they are allowed to work for.

E-2 dependent children may attend school in the US but they may not work.