Chapter 21 Getting a Treaty Investor (e-2) Visa

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 21 Getting a Treaty Investor (E-2) Visa

A. Do You Qualify for an E-2 Visa?

1. Countries That Have Treaties With the U.S
2. Whether Your Company Is Owned by Citizens of a Qualifying Country
3. You Must Be a 50% Owner or a Supervisor, an Executive, or a Key Employee
4. The Investment Must Be Substantial
5. The Enterprise Must Not Produce Marginal Profits
6. It Must Be a Bona Fide, Active Business
7. Your Intent to Leave the U.S
8. Bringing Your Spouse and Children

B. Quick View of the E-2 Visa Application Process

C. How to Apply From Outside the U.S.

1. Preparing and Submitting Your Application Form
2. Pay the Application Fee
3. Gather Supporting Documents
4. Attending Your Consular Interview
5. Visa Issuance and Entry Into the United States

D. How to Apply If You're in the U.S

1. Preparing the Change of Status Application
2. Mailing the Change of Status Application
3. Awaiting a Decision on the Change of Status Application

E. Extending Your U.S. Stay

F. Revalidating Your Visa

An E-2 visa allows businesspeople from certain countries to work in the U.S. for a business in which people from their country have invested. (See I.N.A. § 101(a)(15)(E), 8 U.S.C. § 1101(a)(l5)(E); 8 C.F.R. § 214.2(e); 22 C.F.R. § 41.51.) Like the E-1 visa, some people call the E-2 the next best thing to permanent residence, because of the possibility of self-employment and the unlimited number of extensions. There are no limits on the number of E-2 visas that can be issued each year.

CAUTION

Do not confuse E-2 treaty investor visas with green cards through investment, discussed in Chapter 11. The E-2 visa is a completely different type of visa with completely different requirements. For one thing, it's a nonimmigrant visa. All nonimmigrant visas are temporary, while green cards are permanent. Moreover, a green card through investment requires a dollar investment of $800,000 or more, while an E-2 visa has no dollar minimum. Do not think the E-2 visa will do anything in itself to help you immigrate permanently. There are a great many E-2 nonimmigrant visa holders who are not able to leverage their business into a means for immigration sponsorship. On the other hand, the E-2 visa is renewable indefinitely, at least in theory, so this might be all you require. Again, see Chapter 11 to compare.

Key Features of the E-2 Visa

Here are some of the advantages and disadvantages of the E-2 visa:

• You can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by you or other citizens of your home country, so long as your country has a trade treaty with the U.S.
• You may travel in and out of the U.S. or remain here continuously until your visa and status expire.
• You are restricted to working only for the employer or self-owned business that acted as your E-2 visa sponsor.
• Your initial visa may last up to five years (depending on what country you're coming from), with unlimited possible five-year extensions.
• Each time you enter the U.S., you will be admitted for two years.
• Visas are available for your accompanying spouse and minor children, but your children cannot work here.
• Your spouse will be permitted to accept employment in the U.S.

A. Do You Qualify for an E-2 Visa?

There are six requirements for getting an E-2 visa:

• You must be a citizen of a country that has an investor treaty with the United States.
• You must be coming to work in the U.S. for a company you own or one that is at least 50% owned by other nationals of your home country.
• You must be either the owner or a key employee of the U.S. business.
• You or the company must have made a substantial investment in the U.S. business.
• The U.S. company must be an active, for-profit business.
• You must intend to leave the U.S. when your business in the U.S. is completed.

1. Countries That Have Treaties With the U.S.

E-2 visas are available to citizens of only selected countries that have investor treaties with the United States. Legal residence is not enough. With the exception of E-2 applicants from the U.K., you need not be presently residing in your country of citizenship in order to qualify for an E-2 visa. When you are a citizen of more than one nation, you may qualify for an E-2 visa if at least one of them has an investor treaty with the United States.

Those countries with investor treaties currently in effect are:

Albania	Austria
Argentina	Azerbaijan
Armenia	Bahrain
Australia	Bangladesh

Belgium	Latvia
Bolivia	Liberia
Bosnia and	Lithuania
Herzegovina	Luxembourg
Bulgaria	Macedonia
Cameroon	Mexico
Canada	Moldova
Chile	Mongolia
Colombia	Montenegro
Congo (Brazzaville)	Morocco
Congo (Democratic Republic of, Kinshasa)	Netherlands, The New Zealand Norway
Costa Rica	Oman
Croatia	Pakistan
Czech Republic	Panama
Denmark	Paraguay
Ecuador (investments established or acquired prior to May 18, 2018)	Philippines Poland Romania Senegal
Egypt	Serbia
Estonia	Singapore
Ethiopia	Slovak Republic
Finland	Slovenia
France	Spain
Georgia	Sri Lanka
Germany	Suriname
Grenada	Sweden
Honduras	Switzerland
Ireland	Taiwan
Israel	Thailand Togo Trinidad and
Italy
Jamaica	Tobago Tunisia Turkey Ukraine
Japan
Jordan
Kazakhstan
Korea (South)	United Kingdom
Kosovo
Kyrgyzstan	Yugoslavia

Because treaty provisions are subject to change, be sure your country has one in force before proceeding with your application. The complete list is kept at Volume 9 of the Foreign Affairs Manual (FAM), Section 402.9-10. (See https://fam.state.gov.)

2. Whether Your Company Is Owned by Citizens of a Qualifying Country

To get an E-2 visa, you must be coming to the U.S. to work for a business that is at least 50% owned by citizens of your treaty country. The company may be owned by you or others. If the company is owned in part or in whole by others, and some or all of them already live in the U.S., those people might need to have E-2 visas themselves before the company can act as an E-2 sponsor for you. Specifically:

• At least 50% of the company must be owned by citizens of a single investor treaty country.
• The owners from the single investor treaty country must either (a) live outside the U.S. and be eligible for treaty investor status, or (b) live inside the U.S. with E-2 or other nonimmigrant visa status.

This second condition can be a little confusing. Some examples might help to make it clearer.

EXAMPLE 1: The company is owned 100% by one person (not you). The owner is a citizen of an investor treaty country who lives outside the U.S. in their home country.
In this case, the owner does not need an E-2 visa for the company to support your E-2 visa application, but must be able to satisfy the criteria for an E-2 visa if they were to apply. In other words, the owner cannot be a U.S. citizen or lawful permanent resident.
EXAMPLE 2: The company is owned in equal shares by two people (neither of them you). Each owner is a citizen of the same investor treaty country. One owner lives in the U.S. on a green card. The other still lives in his home country.
In this case, the owner living abroad must be classifiable for E-2 status. If, however, we changed this example so that both owners lived in the U.S., the owner who is a green card holder would not qualify as a treaty investor, so his shares would not count toward the 50% ownership requirement. In this case, the second owner would need to be in E status, or some other nonimmigrant visa status.
EXAMPLE 3: The company is owned in equal shares by 100 people. Thirty owners are citizens of a particular investor treaty country but live in the United States. Thirty other owners are citizens of the same investor treaty country and they are living in their home country. The remaining 40 owners are U.S. citizens.
In this situation, if the company is to act as an E-2 visa sponsor for others, 20 of the 30 owners who are citizens of the investor treaty country but live in the U.S. must hold E-2 visas. Remember that only 50 of the owners need to be citizens of the treaty country. Of those 50, each must either live outside the U.S. and be classifiable for E-2 status or live in the U.S. on an E-2 or other nonimmigrant visa. In our example, 30 live outside the United States. Therefore, only 20 of the investor treaty country citizens living inside the U.S. need to have E-2 visas to make up the necessary 50% total of qualifying owners.

USCIS allows a different test in the case of publicly traded corporations in which it is difficult to determine the nationality of each shareholder. If a corporation's stock is traded exclusively in the country of incorporation, it may be presumed to have the nationality of the country where the stocks are exchanged.

3. You Must Be a 50% Owner or a Supervisor, an Executive, or a Key Employee

E-2 visas may be issued only to the principal owners or key employees of the qualifying business, provided all have the same treaty nationality. To qualify as a principal owner, you must:

• own at least 50% of—and exercise voting control within—the company, and
• develop and direct the business.

To qualify as a key employee, you must be considered either:

• an executive or a supervisor, or
• a person whose skills are essential to the enterprise.

a. Definition of Executives and Supervisors

For E-2 classification purposes, your executive or supervisory position must give you ultimate control and responsibility for the operation of at least a major part of the enterprise. (See 22 C.F.R. § 41.51(b)(12).) The immigration authorities will apply the following standards to determine whether a given position fits the bill:

• An "executive" position normally gives the employee great authority in determining policy and

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