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E-2 Treaty Investor Visa

Overview of the E-2 Treaty Investor visa category
The E-2 visa is a non-immigrant visa, available to nationals of countries with which the United States has a treaty of commerce, investment, and navigation. Individuals in E-2 status are those who made a substantial investment in the U.S. company and wish to come to the United States to develop and direct the business operations of that company. Certain employees of such a person or of a qualifying organization may also be eligible for this visa.
Countries that have necessary treaties with the United States.
Several of the countries that have a treaty of commerce and navigation or bilateral investment treaty are:

Armenia, Azerbaijan, Canada, Estonia, France, Georgia, Germany, Italy, Japan, Kazakhstan, South Korea, Kyrgyzstan, Latvia, Lithuania, Moldova, Taiwan, Ukraine, and United Kingdom.

For a more detailed list of eligible countries, please see the U.S. Department of State’s Treaty Countries. 

Bilateral investment treaties conferring E-2 status have been also signed with Belarus, Russia, and Uzbekistan but have not yet entered into force. The State Department will announce when any of these treaties go into effect.

How quickly can the individual obtain this visa?
The whole process from the time of submission of documents to the consulate until getting a visa in your passport may take as little as two to three weeks.
Who uses the E-2 Treaty Investor visa?
This visa is used by companies and individuals. Most often, this visa is used by real estate investors and by persons who wants to buy a franchise or a small business in the United States.
Eligibility for the E-2 visa
Alien investors who meet the following requirements may qualify for an E-2 visa:

  • The investor’s home country maintains a treaty of commerce and navigation with the United States. You can find a current list of eligible countries at the U.S. Department of State’s Treaty Countries website.
  • The person has invested, or is actively in the process of investing, a substantial amount of capital in the U.S. business. There is no minimum amount required in order for the investment to be considered substantial (as little as $50,000 may be sufficient and even less than $50,000 investment has been approved, but any investment below $100,000 would need a very strong case to support it.)
  • The business in which the investment was made is not less than 50% owned by citizens of the treaty country. Note here that foreign nationals who are also U.S. permanent residents cannot be counted toward determining at least 50%  ownership.
  • The investor intends to come to the U.S. to direct the operations of the company, either as the investor who will develop and direct the investment, or as a qualified manager / executive / supervisor, or specially trained and highly qualified employee necessary for the development of the investment.
  • The investor possesses means of support independent of the enterprise.
  • The investment should result in the creation of jobs for U.S. workers (should be at least 3-4 workers, but there is no requirement for any particular number).
  • The business must have a present or future capacity to generate “more than enough income” to provide a minimal living for the investor and his or her family (if not initially, then at least within the five-year period).

Visa and employment eligibility for a spouse and minor children
The spouse and minor (under the age of 21) unmarried children of the E-2 visa holder are entitled to enter the United States with the visa holder. Once the children get married or attain the age of 21, they no longer can stay in the U.S. in treaty status.

Spouses of E-2 visa holders are eligible to apply for and receive a work authorization. The spouse seeking employment authorization must apply for a work permit on I-765 form. The spouse cannot start employment until the employment authorization document is received from the USCIS. When the work permit is received, the spouse can work with any employer, but only within the period stated on the employment authorization document.

Children cannot obtain a work authorization document.

Do I need a lawyer to obtain a Treaty Investor (E-2) visa?
Many individuals successfully obtain a visa on their own. However, obtaining this visa can be a long and complicated process. To make this process easier and faster, it is often beneficial to use services of a qualified immigration attorney. If you need legal assistance, please contact our lawyers in Orange County, California.
What are some of the advantages of an E-2 business visa?

  • This visa category may be used by different types of companies, from a small company owned by a single investor to a large multinational corporation.
  • The Treaty Investor (E-2) visa can be used for purposes of overseeing investment in the United States.
  • This visa can be used by a company’s principals or by its employees, as long as they are performing functions in accordance with the applicable rules.
  • The treaty alien can extend his or her stay in the U.S. almost indefinitely. Many individuals in E status have been in this country 10 years or more.

Does it matter how I got the money which I now want to invest?
Yes. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.
Application process
It is possible to apply for E-2 status exclusively through a U.S. consulate abroad. The person seeking to get E-2 visa does not need to petition USCIS in order to obtain E status, unless the person is already in the USA in some other nonimmigrant category. If you are already in the USA, you may either file a change of status application with USCIS or you may leave the country to obtain an E-2 visa at a U.S. consulate and reenter the U.S. as an E treaty investor. The procedures for obtaining such visa at the U.S. consulate abroad vary by country.
Change of status to the E-2 category
If you are already in the U.S. in another nonimmigrant status (such as B-1 business visitor, for example) and you want to apply for the E-2 status without leaving the United States, you can file a change of status application with the US Citizenship and Immigration Service.
Who may file for change of status to E-2 category?
If the person who qualifies for this status is currently in the U.S. in a lawful nonimmigrant status, the individual may file Form I-129 with all required documentation to request a change of status to E-2. An employer may also file this form on behalf of the employee if the desired employee is in the United States in a lawful nonimmigrant status.
Travel while change of status application is pending
If an individual, on whose behalf the E-2 change of status application has been filed, travels outside of the United States before the application has been approved, such an individual will be considered to have abandoned the application. As a result, the application will be denied. You will have to apply for this visa at the U.S. consulate abroad if you want to come back to the United States.
Period of admission to the USA in the E-2 status; extensions of stay
In accordance to the rules, E-2 visa holders will get two-year period of admission each time they apply for admission at a U.S. port of entry. Every time they travel abroad, E-2 nonimmigrants will be given a two-year period of stay upon being readmitted to the United States. Note that the period of admission is not the same as the period of validity of the visa issued at the U.S. consulate. As a result, no matter how long the E-2 visa is valid, the maximum period of stay that will be given to the E-2 visa holder at the U.S. border is two years. The initial period of admission can be extended almost indefinitely – as long as the alien affirms that he or she will leave the United States when the period of authorized stay, including unlimited extensions, ends. Of course, to extend this visa, the visa holder must continue in the same capacity with the business, and the business must be actively engaged in trade or services
Would I have to maintain a residence in my home country while I am in the U.S. in E-2 status?
You do not have to maintain a foreign residence during your U.S. stay, as long as you affirm your intention to leave the United States when your authorized period of stay and all extensions expire.
Is there a right to appeal the denial of the E-2 change of status application?
If the application for change of status is denied, no right to administrative appeal exists. The only options at that time are to file a motion to reopen or reconsider the denial, or go into federal court to challenge the USCIS action as an abuse of discretion. All of these options are expensive and would most likely require legal assistance.
Visa renewal after change of status application is granted
The approval of change of status application gives the individual the right to remain in the United States. However, if the individual leaves this country, the person will need to obtain a new visa from a U.S. consulate abroad. Visa renewal in the United States is unavailable to persons who have changed their status while in the U.S.
If I receive an E-2 treaty investor visa status, will I have to remain in the United States any minimum periods of time in order to continue in this status?
No, E-2 visa holders do not have to live in the U.S. any particular amount of time.
Some alternatives to the E category
If you don’t qualify for treaty consideration but want to come to the United States to establish a new company or to service an established enterprise, you may consider an L-1 visa category for intracompany transferees. This category can be used even for small investors seeking to set up a company in the United States.

An investor may also use the B-1 visa category for business visitors to come to the U.S. for short periods of time to set up and staff a company. These persons, however, may not be paid by the United States company.

Lawyer’s help in the process of purchasing a business and applying for E-2 visa
As evident from everything stated above, the process of getting E-2 visa is complex. We recommend seeking advice of a business and immigration attorney, who will be able to help with the preparation of the immigration documents and with the purchase of a business in the United States or with the formation of a new qualifying business entity. If you need any help, we have lawyers who will be able to help with business, commercial, and immigration law. Please contact the Law Offices of Oksana Van Rooy for more information.
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