In today’s global economy, it’s no wonder that investing in an enterprise in a foreign country is just another avenue to success in business. Some invest in an existing company as a means of growing their personal financial success, and some start a new business to expand their horizons. Investors from a treaty country who possess enough capital have the opportunity to apply for an E-2 non-immigrant visa in order to live and work in the United States.
Who qualifies for an E-2 visa?
The E-2 visa requirements are few but complex, with a few different important areas that need to be met. There are two ways to receive an E-2 visa — as a treaty investor or as an employee of a treaty investor. Let’s first look at the general qualifications of treaty investors. They must
- Be a national of a country that maintains a commerce and navigation treaty with the U.S.
- Invest a substantial amount of capital in a bona fide U.S. enterprise
- Enter the U.S. solely to develop the enterprise, demonstrated by maintaining 50% ownership or operational control through the duties of a high-level position in the company
The first criterion is pretty easy to figure out. The U.S. maintains a list of its treaty countries on the Department of State website, along with an indicator of whether the country qualifies as an E-2 treaty country. For example, Azerbaijan is an E-2 treaty country, but not an E-1 country. This means that Azerbaijani investors may obtain a non-immigrant visa, but treaty traders, who qualify based on their substantial trade in goods without the need for individual investment, may not.
What does “substantial investment” mean, and what makes a business “bona fide”?
The State Department’s definition of substantial capital refers to funds and assets that are
- Substantial in relationship to the total cost of either purchasing an established business or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the business
- Likely to result in the treaty investor successfully developing and directing the enterprise (the lower the cost of the overall enterprise, the higher, proportionately, the investment must be in order to qualify as substantial)
The U.S. wants to ensure that its foreign investors are making serious commitments to the success of their business enterprises in the country. Part of that means making sure the capital being invested is going into a bona fide business, or one that is determined by the U.S. government to be real and active in producing goods or services for profit.
Many of these industries leverage their own cultural exchange items and services, such as restaurants, bakeries, and food suppliers. Others offer opportunities for foreign investors to benefit from their expertise in fields like education, tourism, and manufacturing.
Sometimes treaty investors dream of sharing their cultural capital with the world; other times, their dream is to live and work in the U.S. Either way, the E-2 visa can be a great way for foreign entrepreneurs with enough capital to live and work in the U.S. and bring their families with them.
Employees of a treaty investor must
- Be the same nationality of their principal employer, who must themselves have the same nationality as the treaty country
- Meet the definition of “employee” under relevant U.S. laws
- Engage in executive or supervisory duties or have special qualifications
A bakery specializing in traditional Turkish sweets may be able to demonstrate that it needs to bring in employees under the E-2 classification in order to produce its delicious lokma or kunefe. However, speaking the language or understanding the culture of the treaty country is not enough to qualify as a special skill, and the assumption is that ultimately the E-2 employees will be training workers in the U.S. to learn the skill.
When is someone eligible for an E-2 extension?
The period of stay for both treaty investors and qualified employees is a maximum initial stay of two years. Extensions are granted in increments of two years with no maximum to the number of extensions or renewals allowed. However, the E-2 classification is a non-immigrant visa, which means that the visa holder must continue to show they do intend to leave the U.S. when they have completed their necessary work. Until that happens, extensions may be filed for non-immigrants who
- Were lawfully admitted into the United States with a non-immigrant visa
- Have valid non-immigrant visa status
- Have not committed any crimes that make them ineligible
- Have not violated the conditions of their admission, which may include leaving the U.S.
- Have a valid passport that will remain valid for the duration of their stay
Under some conditions, a person who entered the U.S. with E-2 classification may invalidate their status but can reapply for E-2 status renewal, which is covered more in-depth below.
How does someone apply for an E-2 visa extension?
When E-2 treaty investors or employees arrive in the U.S., they are provided a Customs and Border Patrol stamp in their travel document (although a paper copy of the I-94 Arrival-Departure Record can be requested). The admission stamp indicates the length of time they may remain in the U.S.
As long as the non-immigrant or their family member has not become ineligible for any reason, the employer may file for an extension before their length of stay expires by filing a Form I-129 (for the investor or employee) or a Form I-539 (for the family members). All family members may be included on one form, and both the I-129 and I-539 should be filed together to avoid complications that might separate the family unnecessarily.
Documentation needed for an E-2 status extension may include
- The original I-797 (if the E2 visa has already been extended)
- Copy of passport and visa
- Letter explaining the extension is necessary
- Business and personal tax returns for the past two years
- Proof that the visa holder has maintained their non-immigrant status
- Proof that visa holder is physically present in the U.S.
How does someone apply for an E-2 visa renewal?
Leaving the U.S. — or failing to leave the U.S. on time — cancels a person’s E-2 status. If employers do not file extension paperwork on time, they risk invalidating their employees’ status and will lose their employees. However, under some circumstances, a treaty investor or employee may travel outside the U.S. for a reason allowed by the U.S. Customs and Border Patrol. In that case, they will receive an automatic two-year readmission period when they return to the U.S.
Treaty investors who need to renew their status must follow the same steps as applying for a new visa at their consulate or embassy office.
If you’re an E-2 investor or employer needing support with submitting documentation for your or your employees’ E-2 visa extension and renewal, schedule a consultation with Farmer Law today.