E-2 Treaty Investors

A. What is E-2 Treaty Investors visa?

The E-2 non-immigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) 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. 

See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

  • Period of Stay
    Qualified treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-2 non-immigrant may be granted.  All E-2 non-immigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
    An E-2 non-immigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.
  • Family of E-2 Treaty Investors and Employees
    Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E-2 non-immigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-2 spouse may work.

B. General Qualifications of a Treaty Investor

  • Be a national of a country 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
  • 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 operational control through a managerial position or other corporate device.

In order to meet these three criteria, applicants need to pay attention to the following points:

  1. The form of investment is not limited to cash, but also includes other property. The purpose of the applicant’s investment is to make a profit. If the investment fails, there is a risk of losing part or all of the property invested. The sources of funds must be legitimate.
  2. investment is substantial
    1) It is substantially related to the total cost of acquisition or establishment of a company;;
    2) financial commitment to the successful operation of the company by the investors of treaty countries;
    3) The amount of investment can support the successful development and command of the enterprises invested by the Treaty Investor. The lower the cost of the enterprise, the higher the proportion of investment, must be considered substantive.
  3.  Any investment must not be viewed as marginal, meaning that it must have a good chance of generating sufficient income to provide for the visa holder and any family within five years of their entering the U.S..

C. General Qualifications of the Employee of a Treaty Investor

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:  

1) The degree of proven expertise in the employee’s area of operations
2) Whether others possess the employee’s specific skills
3) The salary that the special qualifications can command
4) Whether the skills and qualifications are readily available in the United States.

a) Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date. 
b) 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 be maintaining non-immigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as non-immigrant treaty investors

D. E-2 visa document list

  1. Documents evidencing that the individual and/or business possesses the nationality of the treaty country;
  2. Documents evidencing that the applicant has invested or is in the process of investing;
  3. Documents evidencing that the enterprise is a real and operating commercial enterprise;
  4. Documents evidencing that the applicant’s investment is substantial ;
  5. Documents evidencing that the investment is more than a marginal one solely for earning a living;
  6. Documents evidencing that the applicant is in a position to develop and direct the enterprise;
  7. Documents evidencing that the applicant, if an employee, is destined to an executive/supervisory position or possess skills essential to the firm’s operations in the United States); and
  8. Documents evidencing that the applicant intends to depart the United States when the E-2 status terminates.
  9. Confirmation Sheet of the completed Electronic Visa Application Form DS-160 and Form DS-156E (for employees only). Contact information provided on the DS-160 must include an e-mail address.
  10. application fee
  11. If you will be represented in this matter by an attorney, you must submit form G-28 “Notice of Entry of Appearance of Attorney as Representative” and should include contact e-mail address and phone number for the attorney. If your representative is not an attorney, please submit a letter of agreement between the investor and the representative signed by both parties.
  12. If the applicant is not an investor but an employee, please include a job letter from the company. This letter should describe:
    1) the business;
    2) the job the applicant will do; and
    3) his or her qualifications for that job.
  13. A color photocopy of the bio data page of the principal applicant’s passport and similar copies of any US visas, US entry/exit stamps, and I-94’s.
  14. A copy of any changes or extensions of status granted by USCIS (Form I-797).
  15. Evidence of the applicant’s ongoing residency in Australia (including, as appropriate, a copy of the current lease or mortgage for the applicant’s primary residence in the Australia; the applicant’s most recent Australian pay stub; the most recent school transcript for each child between the ages of 5 and 18 inclusive).
  16. A resume or curriculum vitae of the principal applicant.
  17. Signed statement of intent to depart the US upon termination of status.

E. E-2 procedure

1.If you already residing in the U.S. under a different visa status, you may file for the E-2 visa by changing your current resident status to E-2 status. To achieve this, you will need to file an I-129 petition to request a change of status.                                                                

2.Outside the United States, the clients should complete DS-160, schedule an interview, prepare required documentation, attend the visa interview.

  • Complete online DS-160 Form
  • Pay filing fee
  • Schedule an Appointment
  • Prepare related materials.
  • Attend visa interview, obtain E-2 visa
  • If your application is checked or rejected, please contact a professional attorney in time.