Overview of New E-2 Treaty Investors Visa Eligibility Countries

E-2 Visa Treaty Visa for Post-Expatriation Travel to US

What is E-2 Treaty Visa for Treaty Countries

E-2 Visa Treaty Visa for Post-Expatriation Travel to US: One of the biggest concerns for expatriates when they are no longer considered a US Person, is how do they travel freely to the United States (which is a common concern). When the Taxpayer no longer has US Citizenship or Lawful Permanent Residence — then they have to rely on one of the United States Visas in order to gain entrance into the United States. One of the great parts about the United States’ immigration program is that there are many different types of treaties — depending on whether the nonresident alien is seeking a tourist visa, business visa or investment visa. There is also a specific nonimmigrant visa for Taxpayers who reside in treaty countries and are investors. It is referred to as an E-2 Treaty Investor.

Residence in Treaty Country E-2 Visa Treaty

As any Nonresident Alien will tell you, sometimes it can be rather difficult to work through the US visa system in order to obtain a visa for temporary travel to the United States.  USCIS (United States Citizenship and Immigration Services) makes it a tad bit easier for individuals who are residents of treaty countries and want to invest into the US — and their families — with the introduction of the E-2 visa.

The E-2 visa is a common visa you will find when Taxpayers want to come to the United states for a few years and invest. Here are the basics of the E-2 Treaty Investor Visas:

As provided by USCIS:

• • • The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. 

    • Certain employees of such a person or of a qualifying organization may also be eligible for this classification. (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)

See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

Who May File for Change of Status to E-2 Classification

• • • If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 to request a change of status to E-2 classification on the employee’s behalf.

How to Obtain E-2 Classification if Outside the United States

• • • A request for E-2 classification may not be made on Form I-129 if you are physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad. Upon issuance of a visa, the person may seek admission at a United States port of entry as an E-2 nonimmigrant.

General Qualifications of a Treaty Investor

• • • To qualify for E-2 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, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and

    • Be seeking 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.

    • investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.  See 8 CFR 214.2(e)(12) for more information.

A substantial amount of capital is:

• • • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one

    • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise

    • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

    • A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

Marginal Enterprises

• • • The investment enterprise may not be 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. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.

    • In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).

Period of Stay

• • • Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

    • An E-2 nonimmigrant who travels abroad may generally be granted, if determined admissible by a U.S. Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States.

    • Terms and Conditions of E-2 Status

    • A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

    • Relationship between the organizations is established;

    • Subsidiary employment requires executive, supervisory, or essential skills; and

    • Terms and conditions of employment have not otherwise changed.

    • See 8 CFR 214.2(e)(8)(ii) for details.

    • USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the alien’s eligibility for E classification, such as, but not limited to:

      • A merger;

      • Acquisition;

      • Sale of the division where the alien is employed; or

      • Other event that affects the treaty investor or employee’s previously approved relationship with the treaty enterprise.

    • Where there has been such a substantive change, the treaty investor or enterprise, if it wishes to continue to employ the alien in E-2 status, must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee. The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification. An employer who no longer employs an E-2 nonimmigrant is urged to inform USCIS of this upon termination of the E-2 nonimmigrant’s employment.

    • A treaty investor is not required to file a new Form I-129 to notify USCIS about non-substantive changes. A treaty investor or E-2 employee enterprise may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or enterprise must file Form I-129 with fee and a complete description of the change.

    • See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-2 treaty investor status.

    • A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status. See 8 CFR 214.2(e)(22) for details.

    • Family of E-2 Treaty Investors and Employees

  • Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-2 spouse may work.

  • As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when 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. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.

Countries that Offer E-2 Visa