Commonly known as the investor visa, the E-2 visa classification is available to applicants whose nationality is that of a treaty country with which the United States maintains a treaty of commerce and navigation.
Who may file for change of status to E-2
If the treaty investor currently resides in the United States and has lawful nonimmigration status, they may petition USCIS (United States Citizenship and Immigration Service) and request a change of status to E-2. If an employee of the national is seeking E-2 status, their qualified employer may file for them.
Qualification of a treaty investor.
To qualify for the E-2 visa classification the treaty investor must:
• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Have invested in or be active in the process of investing a substantial amount in a current bona fide United States enterprise
• Prove 50% ownership in a current enterprise with intentions of developing in the United States
A substantial amount of capital is considered an amount that is equal to the total cost of purchasing an enterprise or establishing a new one. Sufficient to ensure the treaty investors commitment, or of magnitude to prove the likelihood of a successful enterprise.
Investment enterprises may not be marginal. A marginal enterprise is one that lacks the current or future capacity to generate enough income for the treaty investor to support themselves and his or her family. A new enterprise that does not have the current capacity to generate sufficient income may be considered not marginal if they have the capacity to generate such income within 5 years of E-2 classification.
Qualifications for employees of the treaty investor
To qualify for the E-2 visa classification the employee must:
• Be the same nationality as the treaty investor
• Meet the requirement of “employee” under current law
• Be an essential part of the enterprises operations
To be considered as essential to the operation, the employee must possess a certain expertise or skill. If the treaty investor is not an individual, the enterprise must be 50% owned by persons in the United States, with the same nationality as the treaty country.
Period of stay
Qualified treaty investors and employees will be granted two years stay in the United States. They may request an extension, given in increments of two years, with no limit. An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.
Terms and conditions
While in the United States a treaty investor or employee may only work in the area of activity that he or she was approved for. However, they may work for the organizations parent company if:
• There is an established relationship between organizations
• They are proven to be essential to the operations of the enterprise
• Terms and conditions of employment have no otherwise changed
Family of treaty investors and employees
A treaty investor or employee’s family will also be qualified for E-2 classification given they are the spouse of the treaty investor, or a child under the age of 21. Family members may seek nonimmigration E-2 classification as dependents, and are usually granted the same length of stay as the employee. Spouses of the employee may file work authorization with USCIS. If the spouse qualifies there are no limits as to where they can work. In regards to traveling abroad, the family members must pay close attention to their period of stay, and request an extension of stay upon returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.
Metin Caglar, Esq.
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