- 1 What is E-2 Treaty Visa for Treaty Countries
- 2 Residence in Treaty Country E-2 Visa Treaty
- 3 Who May File for Change of Status to E-2 Classification
- 4 How to Obtain E-2 Classification if Outside the United States
- 5 General Qualifications of a Treaty Investor
- 6 Countries that Offer E-2 Visa
- 7 Country Specific Footnotes
- 8 Golding & Golding: About Our International Tax Law Firm
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.
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:
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
|Country||Classification||Entered into Force|
|Albania||E-2||January 4, 1998|
|Argentina||E-1||December 20, 1854|
|Argentina||E-2||December 20, 1854|
|Armenia||E-2||March 29, 1996|
|Australia||E-1||December 16, 1991|
|Australia||E-2||December 27, 1991|
|Australia 12||E-3||September 2, 2005|
|Austria||E-1||May 27, 1931|
|Austria||E-2||May 27, 1931|
|Azerbaijan||E-2||August 2, 2001|
|Bahrain||E-2||May 30, 2001|
|Bangladesh||E-2||July 25, 1989|
|Belgium||E-1||October 3, 1963|
|Belgium||E-2||October 3, 1963|
|Bolivia||E-1||November 09, 1862|
|Bolivia 13||E-2||June 6, 2001|
|Bosnia and Herzegovina 11||E-1||November 15, 1982|
|Bosnia and Herzegovina 11||E-2||November 15, 1982|
|Brunei||E-1||July 11, 1853|
|Bulgaria||E-2||June 2, 1954|
|Cameroon||E-2||April 6, 1989|
|Canada||E-1||January 1, 1994|
|Canada||E-2||January 1, 1994|
|Chile||E-1||January 1, 2004|
|Chile||E-2||January 1, 2004|
|China (Taiwan) 1||E-1||November 30, 1948|
|China (Taiwan) 1||E-2||November 30, 1948|
|Colombia||E-1||June 10, 1948|
|Colombia||E-2||June 10, 1948|
|Congo (Brazzaville)||E-2||August 13, 1994|
|Congo (Kinshasa)||E-2||July 28, 1989|
|Costa Rica||E-1||May 26, 1852|
|Costa Rica||E-2||May 26, 1852|
|Croatia 11||E-1||November 15, 1982|
|Croatia 11||E-2||November 15, 1982|
|Czech Republic 2||E-2||January 1, 1993|
|Denmark 3||E-1||July 30, 1961|
|Denmark||E-2||December 10, 2008|
|Ecuador 14||E-2||May 11, 1997|
|Egypt||E-2||June 27, 1992|
|Estonia||E-1||May 22, 1926|
|Estonia||E-2||February 16, 1997|
|Ethiopia||E-1||October 8, 1953|
|Ethiopia||E-2||October 8, 1953|
|Finland||E-1||August 10, 1934|
|Finland||E-2||December 1, 1992|
|France 4||E-1||December 21, 1960|
|France 4||E-2||December 21, 1960|
|Georgia||E-2||August 17, 1997|
|Germany||E-1||July 14, 1956|
|Germany||E-2||July 14, 1956|
|Greece||E-1||October 13, 1954|
|Grenada||E-2||March 3, 1989|
|Honduras||E-1||July 19, 1928|
|Honduras||E-2||July 19, 1928|
|Ireland||E-1||September 14, 1950|
|Ireland||E-2||November 18, 1992|
|Israel 15||E-1||April 3, 1954|
|Israel 15||E-2||May 1, 2019|
|Italy||E-1||July 26, 1949|
|Italy||E-2||July 26, 1949|
|Jamaica||E-2||March 7, 1997|
|Japan 5||E-1||October 30, 1953|
|Japan 5||E-2||October 30, 1953|
|Jordan||E-1||December 17, 2001|
|Jordan||E-2||December 17, 2001|
|Kazakhstan||E-2||January 12, 1994|
|Korea (South)||E-1||November 7, 1957|
|Korea (South)||E-2||November 7, 1957|
|Kosovo 11||E-1||November 15, 1882|
|Kosovo 11||E-2||November 15, 1882|
|Kyrgyzstan||E-2||January 12, 1994|
|Latvia||E-1||July 25, 1928|
|Latvia||E-2||December 26, 1996|
|Liberia||E-1||November 21, 1939|
|Liberia||E-2||November 21, 1939|
|Lithuania||E-2||November 22, 2001|
|Luxembourg||E-1||March 28, 1963|
|Luxembourg||E-2||March 28, 1963|
|Macedonia 11||E-1||November 15, 1982|
|Macedonia 11||E-2||November 15, 1982|
|Mexico||E-1||January 1, 1994|
|Mexico||E-2||January 1, 1994|
|Moldova||E-2||November 25, 1994|
|Mongolia||E-2||January 1, 1997|
|Montenegro 11||E-1||November 15, 1882|
|Montenegro 11||E-2||November 15, 1882|
|Morocco||E-2||May 29, 1991|
|Netherlands 6||E-1||December 5, 1957|
|Netherlands 6||E-2||December 5, 1957|
|New Zealand 16||E1||June 10, 2019|
|New Zealand 16||E2||June 10, 2019|
|Norway 7||E-1||January 18, 1928|
|Norway 7||E-2||January 18, 1928|
|Oman||E-1||June 11, 1960|
|Oman||E-2||June 11, 1960|
|Pakistan||E-1||February 12, 1961|
|Pakistan||E-2||February 12, 1961|
|Panama||E-2||May 30, 1991|
|Paraguay||E-1||March 07, 1860|
|Paraguay||E-2||March 07, 1860|
|Philippines||E-1||September 6, 1955|
|Philippines||E-2||September 6, 1955|
|Poland||E-1||August 6, 1994|
|Poland||E-2||August 6, 1994|
|Romania||E-2||January 15, 1994|
|Senegal||E-2||October 25, 1990|
|Serbia 11||E-1||November 15,1882|
|Serbia 11||E-2||November 15,1882|
|Singapore||E-1||January 1, 2004|
|Singapore||E-2||January 1, 2004|
|Slovak Republic 2||E-2||January 1, 1993|
|Slovenia 11||E-1||November 15, 1982|
|Slovenia 11||E-2||November 15, 1982|
|Spain 8||E-1||April 14, 1903|
|Spain 8||E-2||April 14, 1903|
|Sri Lanka||E-2||May 1, 1993|
|Suriname 9||E-1||February 10, 1963|
|Suriname 9||E-2||February 10, 1963|
|Sweden||E-1||February 20, 1992|
|Sweden||E-2||February 20, 1992|
|Switzerland||E-1||November 08, 1855|
|Switzerland||E-2||November 08, 1855|
|Thailand||E-1||June 8, 1968|
|Thailand||E-2||June 8, 1968|
|Togo||E-1||February 5, 1967|
|Togo||E-2||February 5, 1967|
|Trinidad & Tobago||E-2||December 26, 1996|
|Tunisia||E-2||February 7, 1993|
|Turkey||E-1||February 15, 1933|
|Turkey||E-2||May 18, 1990|
|Ukraine||E-2||November 16, 1996|
|United Kingdom 10||E-1||July 03, 1815|
|United Kingdom 10||E-2||July 03, 1815|
|Yugoslavia 11||E-1||November 15, 1882|
|Yugoslavia 11||E-2||November 15, 1882|
Country Specific Footnotes
- China (Taiwan) – Pursuant to Section 6 of the Taiwan Relations Act, (TRA) Public Law 96-8, 93 Stat, 14, and Executive Order 12143, 44 F.R. 37191, this agreement which was concluded with the Taiwan authorities prior to January 01, 1979, is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan.
- Czech Repubilc and Slovak Republic – The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992; entered into force for the Czech Republic and Slovak Republic as separate states on January 01, 1993.
- Denmark – The Treaty which entered into force on July 30, 1961, does not apply to Greenland.
- France – The Treaty which entered into force on December 21, 1960, applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion.
- Japan – The Treaty which entered into force on October 30, 1953, was made applicable to the Bonin Islands on June 26, 1968, and to the Ryukyu Islands on May 15, 1972.
- Netherlands – The Treaty which entered into force on December 05, 1957, is applicable to Aruba and Netherlands Antilles.
- Norway – The Treaty which entered into force on September 13, 1932, does not apply to Svalbard (Spitzbergen and certain lesser islands).
- Spain – The Treaty which entered into force on April 14, 1903, is applicable to all territories.
- Suriname – The Treaty with the Netherlands which entered into force December 05, 1957, was made applicable to Suriname on February 10, 1963.
- United Kingdom – The Convention which entered into force on July 03, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands and Gibraltar) and to “inhabitants” of such territory. This term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” Also, in order to qualify for treaty trader or treaty investor status under this treaty, the alien must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty.
- Yugoslavia – The U.S. view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY – Bosnia and Herzegovina, Croatia, the Republic of Macedonia, Slovenia, Montenegro, Serbia, and Kosovo a continue to be bound by the treaty in force with the SFRY and the time of dissolution.
- The E-3 visa is for nationals of the Commonwealth of Australia who wish to enter the United States to perform services in a “specialty occupation.” The term “specialty occupation” means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The definition is the same as the Immigration and Nationality Act definition of an H-1B specialty occupation.
- Bolivia – Bolivian nationals with qualifying investments in place in the United States by June 10, 2012 continue to be entitled to E-2 classification until June 10, 2022. The only nationals of Bolivia (other than those qualifying for derivative status based on a familial relationship to an E-2 principal alien) who may qualify for E-2 visas at this time are those applicants who are coming to the United States to engage in E-2 activity in furtherance of covered investments established or acquired prior to June 10, 2012.
- Ecuadorian nationals with qualifying investments in place in the United States by May 18, 2018 continue to be entitled to E-2 classification until May 18, 2028. The only nationals of Ecuador (other than those qualifying for derivative status based on a familial relationship to an E-2 principal alien) who may qualify for E-2 visas at this time are those applicants who are coming to the United States to engage in E-2 activity in furtherance of covered investments established or acquired prior to May 18, 2018.
- Israel: Pursuant to a treaty of friendship, commerce, and navigation between the United States and Israel that entered into force on April 3, 1954 entitled nationals of Israel to E-1 status for treaty trader purposes. Nationals of Israel are not entitled to E-2 classification for treaty investor purposes under that treaty. Public Law 112-130 (June 8, 2012), accords nationals of Israel E-2 status for treaty investor purposes if the Government of Israel provides similar nonimmigrant status to nationals of the United States. The Department has confirmed that Israel offers reciprocal treaty investor treatment to U.S. nationals and E-2 visa may be issued to nationals of Israel beginning on May 1, 2019.
- New Zealand: Public Law 115-226, enacted on August 1, 2018, accorded nationals of New Zealand to E-1 and E-2 status for treaty trader/treaty investor purposes if the Government of New Zealand provides similar nonimmigrant status to nationals of the United States. The Department has confirmed that New Zealand offers similar nonimmigrant status to U.S. nationals and E visas may be issued to nationals of New Zealand beginning on June 10, 2019.
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