E-2 Employee/Investor Visa

E-2 Employee/Investor Visa is a nonimmigrant visa popular for both corporate employee migration and individual investor starting a new business or purchasing an existing establishment.  

Our team at The Law Office Of Zhang can help you apply for an E-2 visa. Contact us online to schedule a consultation and learn more.

FOR CORPORATION

An E-2 Employee Visa is a classification that allows the national of a treaty country to work for an E-2 treaty investor business. An E-2 treaty investor business is any business that satisfies the criteria for an E-2 treaty investor visa, in this way enabling the owner of that business to apply for permission to oversee its running or an employee of an E-2 treaty investor to work for that business. This could be an existing or new US business, in which someone of the same nationality, known as the treaty investor, has invested a substantial amount of capital. Provided the eligibility requirements under the E-2 route are met by the treaty investor, certain employees of that investor may also be eligible.

E-2 Employee Requirements

To be eligible to apply for an E-2 Employee Visa, the E-2 business must be registered with the E-Visa Unit. This means that all of the eligibility requirements for that business must first be met, including detailed documentary evidence that this is a real and active commercial undertaking into which the main treaty investor has, or is in the process of making, a substantial investment.

The E-2 employee must also satisfy the following criteria:

• they must share the same nationality as the E-2 business;
• they must be destined to work in an executive or supervisory position, or possess skills that are considered essential to the operations in the U.S.;
• they must intend to leave the US when their E-2 status expires

Executive Or Supervisory Employees

In determining whether an employee will be undertaking an executive or supervisory role in the US E-2 business, various factors will need to be taken into account. These include the title, duties and pay of the position in question, its place in the organizational structure, the degree to which the applicant will have control and responsibility for overall operations, who the applicant will supervise, and whether the applicant possesses any relevant experience.

The executive or supervisory aspect of the role must be the principal and primary function, and not incidental. For example, if the position largely involves routine work and secondarily entails supervision of low-level employees, the position will not be classed as executive or supervisory for the purposes of an E-2 employee visa.

Employees Essential To Operations

In determining whether an employee possesses skills essential to US operations, various factors will need to be taken into account. These include the experience and training necessary to achieve such skills, the uniqueness of these skills, the availability of US workers with the same skills, the salary such special expertise can command, the degree of the applicant’s proven expertise, and the function of the job that the applicant will be doing.

In some cases, ordinarily skilled workers may qualify as essential employees, such as workers needed for start-up or training purposes. These employees derive their essentiality from their specialized knowledge and familiarity with the overseas operations. However, apart from an ordinarily skilled worker relying on this specialized knowledge of a business, there’s no strict requirement that an essential employee have any previous employment with the enterprise.

FOR INDIVIDUAL INVESTOR

The United States welcomes investors from treaty countries. The E-2 visa program is designed for nationals of treaty countries to make substantial investments in companies here in the U.S. The E-2 visa is renewable indefinitely. In other words you, the E-2 investor, and your spouse will be able to work and live in the U.S. as long as the business is still functional. 

E-2 Investor

In order to qualify as an E-2 investor, there are a few things you’ll need to show.

• As an investor, you need to be able to show citizenship of the treaty country*

*IMPORTANT UPDATE: As of Dec. 23, 2022, Section 101 (a)(15)(E) of the Immigration and Nationality Act (INA) was amended to define the eligibility criteria for E visas. See Section 5902 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. 117-263, December 23, 2022, 136 Stat 2395. For all E-1 and E-2 filings received on or after Dec. 23, 2022, USCIS may request additional documentation related to how the applicant obtained treaty country nationality to ensure compliance with the amended language. In addition, for those individuals who obtained treaty country nationality through a financial investment, USCIS may require additional documentation to show that the applicant has been domiciled in the treaty country indicated in the application for a continuous period of at least 3 years at any point before applying for E-1 or E-2 classification. 

• A majority of the business ownership
• The investment/business is “real”
• The investment is “substantial” and that the investment you made/will make is “committed and irrevocable.”
• The investment is not marginal. A marginal enterprise is 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. 
• The investment is at risk
• You seek to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

Q&A

How much investment is “substantial investment”?

Unfortunately, there is no magic number.  However, there are a few guidelines that officials look to when determining if you have made a substantial enough investment to warrant this visa.  They may look to determine whether the investment is enough to keep a business going and growing successfully.  In addition, they may review the total cost of the business then look at your investment to see if you’ve invested a substantial portion of the cost. (Keep in mind that the lower the cost of the business, the less they will take this factor into account.) Our experienced E-2 attorney at The Law Office of Zhang will be able to provide an analysis of a “substantial amount” for your specific business during our consultation. 

How long is E-2 visa valid for?

E-2 visa is good for three months to five years (depending on the country of origin) and can be extended for additional two-year each extension indefinitely, as long as the E-2 business still operates successfully.

Should I apply for an E-2 visa in the United States, or in my country of origin?

There are a lot of variables here, but generally, we recommend that folks leave the country and interview for the E-2 visa at a US Consulate in the home country.  If you apply for the E-2 visa through USCIS (here in the United States), you will have to apply again once you leave the country for any reason.  And, once you apply with the US Consulate, the decision is not based upon the USCIS approval.

Can my spouse work and children go to school as an E-2 dependent?

Yes, Your spouse may apply for permission to work and will be allowed to work anywhere. Your children under 21 years old can attend both public and private schools in the US. However, once they turn 21 years old they need to have their own independent immigration status. 

I’m a dual national.  How do I “pick” a nationality for purposes of the E-2?

This can be a sticky situation.  Generally speaking, the consulate, when reviewing your packet, will look to the country most closely associated to your dealings with the E-2 process.  This is definitely something to discuss with our attorney especially with the new “3-year residency” rule published in December 2022. 

Our team at The Law Office Of Zhang can help you apply for an E-2 visa. Contact us online to schedule a consultation and learn more.