The E-2 Investor visa program allows for foreign nationals of treaty signatory countries to enter and work in the U.S. in a business investment capacity. The investor must be planning to come to the U.S. with the intention to direct and develop the operations of an enterprise in which has invested, or is actively involved in the process of investing.
A substantial amount of lawfully acquired capital must be invested at a commercially controlled capacity with risk management factors, including a significant loss, accounted for. Eligibility for E-2 visa is available to foreign national recipients who are citizens of treaty countries as part of commerce and navigation initiatives established under the U.S. Department of State. Investors applying for an E2 visa outside of the U.S. are not required to file for a petition.
E-2 Visa Application Process
Foreign nationals who meet treaty investor requirements that are already legally residing in the U.S. on a nonimmigrant status may file a Form I-129 to request a change of status to the E-2 classification. Furthermore, an employer may submit the I-129 form on behalf of the desired employee so long as they are in a lawful nonimmigrant status.
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EB-3 Visa Application Process
Treaty investors residing outside of the U.S. are not able to a Form I-129 to be granted admission under the E-2 program. Instead, they must apply and receive an E-2 visa from a U.S. consulate or embassy overseas. A U.S. consular representative will look for the following qualifications in a treaty investor:
- The treaty investor must be a national of a country with which the United States maintains a treaty of commerce and navigation;
- The treaty investor must have invested, or be actively in the process of investing, a substantial amount of capital in a bonafide enterprise in the United States; and
- The treaty investor must be seeking to enter the United States solely to develop and direct the investment enterprise. Treaty investors must demonstrate their capability of commitment by showing at least 50% ownership of the enterprise or possession of operational control through the duties of a high-level position in the company.
Substantial Capital Under an E-2 Visa
Substantial capital as defined by the State Department involves funds and assets that meet the following conditions:
- The capital is enough to substantiate the total cost of either purchasing an established business or establishing a new one
- The capital funding sufficiently ensures that the treaty investor’s financial commitment will successfully allow the business to operate
- The capital funding must be of a magnitude that supports the likelihood that the treaty investor will successfully develop and direct the enterprise (the lower the cost of the overall enterprise, the higher, proportionately, the investment must be in order to qualify as substantial).
Furthermore, the investment enterprise must be verified as a bonafide business opportunity. The U.S. government determines the merits of a bonafide enterprise based on its real and active status in producing goods or services for profit.
Lastly, marginal enterprises do not qualify under the E-2 program. A marginal enterprise is defined as one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
E-2 Visa Family Sponsorship Status
Immediate family members — spouses and children under 21 — of E-2 treaty investors and employees may seek E-2 nonimmigrant classification as dependents. They are not required to have the same nationality as the treaty investor or employee. Family members are generally granted the same period of stay allowance as the treaty investor or employee.
Family members who already reside in the U.S. and are looking to change their status under the qualifications of an E-2 visa-dependent classification may apply by filing a single Form I-539 for a fee. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with a fee. No specific restrictions regarding where a spouse may work are set as long as approval is granted.
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E-2 treaty investors who travel abroad and are granted an automatic two-year period of readmission when returning to the United States. This does not automatically extend to E-2 dependents unless they accompany the E-2 treaty investor or employee. To remain lawfully in the United States, family members must keep track of the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.
E-2 Visa Timeline
Most E-2 visa applications are submitted through a U.S. consulate with processing times of two weeks to four months depending on the consulate’s geographic location. First, an initial review must be completed. Then, the consulate representative will set up a follow-up interview with the E-2 applicant. Pending approval, the E-2 visa will take about a week to be issued after the application goes through. Using the assistance of an E-2 visa attorney can help expedite the process and make sure you are on track to receive your visa in a timely manner.
E-2 Visa Period of Validity and Fees
Treaty investors and employees who qualify for the E-2 program will be allowed a maximum initial stay of two years. Extension of stay requests may be processed to reflect an extension period granted in two year increments. Under the E-2 nonimmigrant program, there is no limit to the number of extension requests granted. However, all E-2 nonimmigrants must uphold their intention to depart the United States upon termination or expiration of their status under the E-2 program.
Additionally, with admission from a U.S. Customs and Border Patrol Officer, an E-2 nonimmigrant who travels abroad may be granted an automatic two-year period of readmission when returning to the United States. More information on E-2 visa extension and renewal can be found here.
Farmer Law Can Guide the Way
The expansion of global enterprise has allowed investors to plant new business initiatives internationally, creating growth and success across multiple levels of commerce. Treaties permit the exchange of goods and ideas between countries allowing new opportunities to unfold across the diaspora of stakeholders. For investors who possess enough capital, they are able not only to participate but facilitate this process of transnational interconnectedness by establishing or supporting industry initiatives in the U.S. under the E-2 program.
The attorneys at Farmer Law are available to employers and employees looking for guidance to find a suitable pathway for investment-based immigration. If you feel the E-2 visa is not the right fit for your needs, be sure to see the other visa types available for hopeful green card candidates. Schedule an initial consultation with our team of legal immigration experts to find out more about what options are available regarding your employment visa eligibility.
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