E-2 Work Visas

Treaty Investors

E-2 Visas for Treaty Investors

Who is Eligible to Apply for an E-2

  • The treaty investor must be a national of a treaty country
  • The treaty investor has invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.
  • The treaty investor is seeking to enter the U.S. 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.

A “treaty country” is a country with which the U.S. maintains a treaty of commerce and navigation, or with which the U.S. maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation.

Frequently Asked Questions

What constitutes "Substantial Investment"?

The “Substantial 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.

What constitutes "Substantial Capital"?

A substantial amount of capital is required for an E-2 qualification. Substantial capital is defined as:

  • 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.
What are the Requirements for the Employee of a Treaty Investor?

Employees must be:

  • The same nationality of the principal alien employer who must have the nationality of the treaty country;
  • Meet the definition of “employee” under relevant law; has invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.; and
  • Either be engaging in duties of an executive or supervisory character or if employed in a lesser capacity, have special qualifications.

“Principal alien employer”: If it is not an individual, it must be an enterprise or organization at least 50% owned by persons in the U.S. who have the nationality of the treaty country. These owners must either (a) be maintaining nonimmigrant treaty investor status or (b) if the owners are not in the U.S., they must be, if they were to seek admission to the U.S., classifiable as nonimmigrant treaty investors.

“Duties of an executive or supervisory character”: Those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation or a major component of it.

“Special qualifications”: Skills and/or aptitudes that make the employee’s services essential to the efficient operation of the treaty enterprise.

The qualities or circumstances may include:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualification can command
  • Whether the skills and qualifications are readily available in the U.S.

Filing Process for an E-2 Visa

 

Within the U.S.: The treaty investor may file Form I-129 to request a change of status to E-2 classification. The qualifying employer may file Form I-129 to request a change of status to E-2 classification for the employee who is in the U.S.

Outside the U.S.: File the Form DS-160, Nonimmigrant Visa Application. Before entering the U.S., treaty investors and their nonimmigrant employees must apply for and receive an E-2 visa from a U.S. Consulate or Embassy overseas and subsequently be admitted to the U.S. by CBP.

Have questions about Alternative Non-Immigrant Visas? Contact Springdale Law Firm.