E-2 Investors
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) 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. If
the treaty investor is currently in the United States in a lawful
nonimmigrant status, he or she 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 on the employee´s behalf. A
request for E-2 classification may not be made on Form I-129 if the
person being filed for is 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 then apply to a DHS
immigration officer at a U.S. port of entry for admission as an E-2
nonimmigrant. To qualify for E-2 classification, the treaty investor must: An 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: 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). To qualify for E-2 classification, the employee of a treaty investor must: If
the principal alien employer is not an individual, it must be an
enterprise or organization at least 50% owned by persons in the United
States who have the nationality of the treaty country. These owners
must be maintaining nonimmigrant treaty investor status. If the owners
are not in the United States, they must be, if they were to seek
admission to this country, classifiable as nonimmigrant treaty
investors. See 8 CFR 214.2(e)(3)(ii). Duties which are of an executive or supervisory character
are those which primarily provide the employee ultimate control and
responsibility for the organization´s overall operation, or a major
component of it. See 8 CFR 214.2(e)(17) for a more complete definition. Special
qualifications are skills which make the employee´s services essential
to the efficient operation of the business. There are several qualities
or circumstances which could, depending on the facts, meet this
requirement. These include, but are not limited to: Knowledge
of a foreign language and culture does not, by itself, meet this
requirement. Note that in some cases a skill that is essential at one
point in time may become commonplace, and therefore no longer
qualifying, at a later date. See 8 CFR 214.2(e)(18) for a more complete
definition. Qualified treaty investors and
employees will be allowed a maximum initial stay of two years.
Requests for extension of stay may be granted in increments of up to two
years each. There is no maximum 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 an automatic two-year period of readmission
when returning to the United States. It is generally not necessary to
file a new Form I-129 with USCIS in this situation. 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: 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, such as, but not limited to, a
merger, acquisition, or major event which affects the treaty investor or
employee´s previously approved relationship with the organization. The
treaty investor or enterprise 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. Edit Article -->
Who May File for Change of Status to E-2 Classification
How to Obtain E-2 Classification if Outside the United States
General Qualifications of a Treaty Investor
Marginal Enterprises
General Qualifications of the Employee of a Treaty Investor
Period of Stay
Terms and Conditions of E-2 Status
