E-2 Treaty Investor Visas

Posted November 11, 2011

I.N.A. §101(a)(15)(E)

E-2 Treaty Investor visas are available to persons entering the United States “solely to develop and direct the operations of an enterprise in which s/he has invested, or is actively in the process of investing, a substantial amount of capital.”  At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the U.S. and the home country have a ratified bilateral investment treaty (see the current list of E-1 and E-2 treaty signatories here).  Employees of the enterprise who are working in management, executive or “essential” positions are also eligible for E-2 visas if the ownership breakdown meets the above test.

Some of the more important requirements for an E-2 visa include the following:

  • The investment must be active, not passive.  The investor must make an irrevocable commitment of funds that represents an actual, active investment.  The investor must also manage the business and exercise a controlling interest in the business.
  • The investment must be substantial.  While “substantial” is undefined in the Immigration and Nationality Act (INA), the Department of State uses a proportionately test to see if this requirement is met.  The amount invested must be weighed against the total value of the enterprise for established enterprises or the amount considered necessary to set up a viable enterprise for new businesses.  For small to mid-sized firms, “substantial” means the investment must be more than half the value of the enterprise.  For service businesses, the test is whether the amount is adequate to establish a viable enterprise.
  • The investment cannot be marginal.  The State Department will look at whether the investment will generate more revenues than just enough for the owner(s) to make a living and whether the investment will create jobs.
  • The E-2 visa applicant must possess an intent to depart the U.S. upon expiration of the visa.  Unlike other nonimmigrant visa categories, however, this requirement can be met if the E-2 applicant simply provides USCIS or the consulate where the application is made with a statement to this effect. Further, 8 CFR §214.2(e)(5) permits an extension of E visa status if the foreign national is the beneficiary of a pending immigrant visa petition.

Applications for E-2 visas are made directly with U.S. consulates abroad and not through the USCIS unless the applicant is in the U.S. in another visa status and seeks to change to E-2 status.  Each consulate has its own version of an E visa questionnaire form and most require extensive documentation to accompany the application form.  The length of time the visa will be issued is determined by agreements between the U.S. and the treaty country.  Visas may not be issued for more than five years, but they may be renewed continuously without a limit on total length of stay in the U.S. in E-2 status.

Spouses and children of E-2 visa holders are entitled to E-2 visas on a derivative basis, subject to proving the family relationship.  Further, spouses of E-2 visa holders may obtain employment authorization.  Family members of E-2 visa holders may also study in the U.S., full or part-time.

Tagged with:

Leave a Reply