E-2 Nonimmigrant Visa Classification for Treaty Investors
Our attorneys have broad experience representing foreign entrepreneurs and foreign business organizations with subsidiaries in the U.S. seeking to obtain the E-2 nonimmigrant visa classification. Our attorneys advise on how U.S. employers qualify as a treaty enterprises, how a foreign workers qualify for E-2 status, and how foreign workers can acquire lawful E-2 status.
The E nonimmigrant visa classification is only available to foreign workers or foreign investors who are citizens or nationals of a country with which the U.S. maintains a treaty of friendship, commerce, or navigation. The foreign national must be entering the US to perform certain types of services for an organization with the same nationality and that also meets certain criteria for investment. The E-2 visa has strict nonimmigrant intent, meaning that the E-2 visa holder must intend to depart the U.S. once the visa expires or the visa is no longer valid. The E-2 visa classification is eligible for Premium Processing Services, making it highly valuable to entrepreneurs seeking to enter the U.S. and start a business rather quickly.
Qualifying E-2 Organization
The E-2 treaty enterprise must have the nationality of a treaty country. The U.S. Department of State’s official website maintains a list of countries with which the U.S. has treaties that qualify nationals of those countries for the E-2 classification. This list may be found at the following link:Treaty Countries (state.gov)
For an E-2 application, the treaty enterprise may be the treaty investor or a business enterprise, which employs or intends to employ, the qualifying foreign worker. The nationality of the business enterprise is determined by the nationality of its owners. Our attorneys will provide guidance about how to structure your U.S. business organization to satisfy the regulations governing the E-2 visa classification.
An entity or individual qualifies as an E-2 treaty investor if the person or organization:
- Holds the nationality of a treaty country that is authorized under the treaty to engage in the E-2 treaty investor nonimmigrant visa classification,
- Makes or has made a substantial investment in a bona fide U.S. enterprise that is:
- Sufficient to ensure the enterprise’s successful operation,
- A real operating enterprise, not a speculative or idle investment, and
- Not marginal.
- Controls the funds.
A bona fide enterprise is a real, active, and operating commercial or entrepreneurial enterprise that produces goods or services for profit and that is legally doing business in its jurisdiction.
E-2 status is available to foreign workers coming to the U.S. to fill one of the following position types:
- A Principal Investor, who must demonstrate he or she will oversee and direct the investment.
- An Executive or Supervisor, who must demonstrate he or she will principally perform executive or supervisory job duties, which should include control over the employer’s operations or a major component of those operations.
- An Essential Skills Employee, who must demonstrate he or she possesses special qualifications that the employee brings to a lower-level position, which are essential to the employer’s successful or efficient operation. Essential skills employees should possess skills that are in short supply, and that are needed for a specific period.
Qualifications of the E-2 Worker
A qualifying E-2 worker must be a citizen of a country with which the U.S. maintains a treaty of friendship, commerce, or navigation and have the same nationality as the petitioning organization.
If you meet these two criteria, our attorneys will collect and draft all documentation necessary to evidence you have the education, training, and experience needed to perform in the position that you will fill in the U.S. If you request E-2 classification for an executive or supervisory role, we will demonstrate you possess the background necessary to perform those duties and responsibilities. Likewise, if you are being sponsored for an essential skills position, we will prepare and file documentation evidencing you possess the specialized skills and the degree of expertise to perform in the proposed U.S. employment.
Upon request, our Firm will connect you with an Immigration Business Plan specialist to develop a comprehensive business proposal that addresses all factors that the U.S. Consulate or USCIS weigh when adjudicating whether your investment is substantial and qualifies as a bona fide U.S. business. With your business plan in hand, our attorneys will draft the required Company Support Letter and other documentation to ensure you satisfy the complex standards of the E-2 visa classification.
Based on whether you are in the U.S. or abroad, our attorneys will file your E-2 Petition with USCIS or with the U.S. Consulate in your home country. If you are currently in the U.S., we will balance timing, adjudication trends, travel needs, and other considerations to determine whether to file an extension, amendment or change of status for you to acquire E-2 status with the USCIS. This will avoid the immediate need to travel abroad to a U.S. embassy or consulate to apply for the visa. However, if we obtain an approved USCIS petition, you must make a complete presentation to a U.S. consulate in the treaty country as part of an E-2 visa application on your first travel outside the U.S.
