A Complete Guide of E-2 Visa
Updated on 03/19/2023
One element of the United States immigration system is that foreigners from different countries often are not treated the same. If you are from a country that the United States wants to favor, you may be able to take advantage of a certain United States immigration benefit. On the other hand, if you are from a country that the United States does not want to favor, you may be denied the right to pursue such certain United States immigration benefit.
This element of the United States immigration system is evidenced by the E-2 visa. An E-2 visa is a non-immigrant work visa, which grants a foreigner the right to stay in the United States for a temporary period of time. Among the requirements for a foreigner to obtain an E-2 visa is that the foreigner is a national of a country that has a certain economic relationship with the United States. If a foreigner is not a national of a country that has such certain economic relationship with the United States, the foreigner cannot qualify to obtain an E-2 visa.
This article discusses the topic of E-2 visa.
E-2 Visa Requirements
There are three key requirements for a foreigner to qualify to obtain an E-2 visa, as follows:
- The foreigner must be a national of a “qualifying country”;
- The foreigner must have invested, or be actively in the process of investing, “a substantial amount of capital”; and
- The foreigner must seek to enter the United States to develop and direct “a bona fide enterprise” in the United States (in which the “substantial amount of capital” is invested).
Qualifying Countries
For purposes of an E-2 visa, a “qualifying country” is known as a “treaty country”. It includes a country with which the United States maintains a treaty of commerce and navigation, a country with which the United States maintains a qualifying international agreement, or a country which has been deemed a qualifying country by legislation.
The U.S. Department of State maintains a current list of treaty countries for purposes of an E-2 visa. It includes Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Columbia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Israel, Italy, Jamaica, Japan, Jordan,Kazakhstan, Korea (South), Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Serbia, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.
If you are a national of one of the 81 treaty countries listed in the preceding sentence, you may be eligible to obtain an E-2 visa.However, if you are not a national of one of these 81 treaty countries, you are ineligible to obtain an E-2 visa. This ineligibility extends to nationals of such countries as mainland China (includes Hong Kong and Macau), Cuba, Iran, Iraq, Korea (North), Libya, Russian Federation, Saudi Arabia, South Africa, and Syria.
Investment of Substantial Amount of Capital
For purposes of an E-2 visa, “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 foreign investor’s financial commitment to the successful operation of the enterprise; and
- Of a magnitude to support the likelihood that the foreign 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.
There is no minimum or “magic number” amount of capital to meet this “substantial amount of capital” requirement. Instead, the determination of what constitutes a substantial amount of capital will vary from investment to investment. For example, a $50,000 investment in a multi-million-dollar, capital-intensive manufacturing business may not be considered a substantial amount of capital, while a $50,000 investment in a small service business may be considered a substantial amount of capital.
The substantial amount of capital must be subject to investment. An investment is the foreign investor’s placing of capital, including funds and other assets (which have not been obtained, directly or indirectly, through criminal activity), at risk in the commercial sense with the objective of generating a profit. The foreign investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the foreign investor’s unsecured personal business capital or capital secured by personal assets.
Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The foreign investor has the burden of establishing such irrevocable commitment. The foreign investor may use any legal mechanism available, such as the placement of invested funds in escrow pending admission in, or approval of, E-2 visa classification, that would not only irrevocably commit funds to the enterprise, but might also extend personal liability protection to the foreign investor in the event the application for E-2 visa classification is denied.
Bona Fide Enterprise in the United States
For purposes of an E-2 visa, “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 in the United States.
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 foreign investor and the foreign investor’s family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. However, the enterprise should have the capacity to generate such income within five years from the date that the foreign investor’s E-2 classification begins.
In evidencing that the foreigner is seeking to enter the United States todevelop and direct a bona fide enterprise in the United States, it must be established that the foreigner controls the enterprise by demonstrating ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device, or by other means.
Two Paths to Obtain E-2
There are two paths to obtain E-2, depends on the foreigner is inside or outside the United States.
Change Status to E-2 Status inside the U.S.
If the foreigner is currently lawfully in the United States in a non-immigrant visa status, Form I-129, “Petition for a Nonimmigrant Worker”, can be filed to obtain a change of status to E-2 visa status. Form I-129 is filed with U.S. Citizenship and Immigration Services (“USCIS”). However, the foreigner entered the U.S. under visa waiver program is not eligible to change status to E-2 inside the U.S. In addition, if the foreigner plans to have international travel after obtaining E-2 status in the U.S., the foreigner must obtain an E-2 visa through U.S. consulate outside the U.S. first, then reenter the U.S. with the E-2 visa.
Obtain E-2 Visa through U.S. consulate outside the U.S.
If the foreigner is not currently in the United States, Form I-129 cannot be filed with USCIS to obtain an E-2 status. Instead, the foreigner must proceed through the U.S. Department of State and the applicable U.S. embassy or consulate in the foreigner’s country. Two key documentsin this process for a foreigner not currently in the United States are Form DS-160, “Online Nonimmigrant Visa Application”, and Form DS-156E, “Nonimmigrant Treaty Trader/Treaty Investor Application”.
Terms and Conditions of E-2 Visa
If the foreigner obtains an E-2 status through I-129 application (as described above), such E-2 status is generally valid for 2 years. In other words, the foreigner is allowed to stay in E-2 status in the U.S. for a maximum of 2 years. However, if the foreigner leaves the U.S. before the anniversary of 2 years, the foreigner must obtain an E-2 visa at the U.S. embassy or consulate in the foreigner’s country in order to reenter the U.S. with the E-2 visa. Requests for extension of stay under an E-2 status generally may be granted in increments of up to two years each; there is no limit to the number of extensions that may be granted as long as the foreigner is still qualified for E-2 classification.
The validity period of an E-2 visa issued by the U.S. embassy or consulate depends on the treaty agreement between foreigner’s country and U.S. Thus, some E-2 visas are valid for 5 years (e.g., Canada, South Korea, Taiwan, Grenada) while some of them are valid for 1 year only. No matter how long the E-2 visa is valid for, an E-2 visa holder can only be allowed to consecutively stay in the U.S. for a maximum of 2 years. Nevertheless, the foreigner can always reenter the U.S. as long as the E-2 visa stamp on the passport is still valid. Furthermore, even if E-2 visa is expired, it can be renewed without times limit as long as the foreigner is still qualified for E-2 classification.
A key condition with an E-2 visa or E-2 status is that the principal E-2 holder (E-2 investor) may only work in the United States in the activity and entity for which the foreigner was approved in the E-2 application. The E-2 investor is prohibited to work for others. However, the spouse of E-2 investor who has E-2 dependent visa can work for anyone in the U.S.
Employees and Family Members
Certain employees and family members of an E-2 investor also can qualify for E-2 visa or E-2 status.
E-2 Employee
A qualifying E-2 employee must:
- Generally be of the same nationality as the E-2 investor (who, as described above, must be a national of a treaty country);
- Meet the definition of employee under relevant law; and
- Either be engaging in “duties of an executive or supervisory character”, or if employed in a lesser capacity, have “special qualifications”. “Duties of an executive or supervisory character” are those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation, or a major component of it.“Special qualifications” are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the enterprise. There are several qualities or circumstances that could, depending on the facts, meet this “special qualifications” requirement, including without limitation, 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 qualifications can command, and whether the skills and qualifications are readily available in the United States.
An employee also can qualify for an E-2 visa or E-2 status even if there is not an employer who is an individual (an E-2 investor), if the employer is an enterprise or organization at least 50% owned by persons in the United States who have the same nationality (of a treaty country) as the employee. These owners must either be maintaining E-2 visa status or, if not in the United States yet, classifiable for an E-2 visa if they were seeking admission to the United States in E-2 visa.
In addition, a qualifying E-2 employee also can work for an enterprise’s or 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.
E-2 Family Member
The spouses and unmarried children under 21 years of age of both E-2 investor and qualifying E-2 employees also can qualify for E-2 (E-2 dependent). The spouse or child need not be of the same nationality as the E-2 investor or qualifying E-2 employee. If the family members are already in the United States and seeking a change of status to or an extension of stay in an E-2 dependent visa classification, they may apply by filing a single Form I-539, “Application to Change/Extend Nonimmigrant Status”. Again, family members under visa waiver program are not qualified to change of status through Form I-539. They must apply for E-2 dependent visa at the U.S. embassy or consulate.
Cost to Obtain E-2 Visa
Two of the principal costs that will be incurred to obtain an E-2 visa are filing fees and legal fees.
For the various applicable E-2 visa forms described above, the current filing fees are:
- Form I-129 – $460. For extra filing fee of $2,500, Form I-129 also can be filed with “premium processing” so that USCIS will process the I-129 application in 15 days;
- Form I-539 – $370;
- Form DS-160 – $205; and
- Form DS-156E – $0.
Obtaining an E-2 visa is a complex process, and it is recommended that a skilled immigration attorney be retained to assist with the process.
It is also possible that a business plan writer may need to be hired as preparation of a proper business plan (concerning the investment and enterprise) can be very helpful to obtain approval of an initial E-2 visa.
It also should be noted that the requirement to invest “a substantial amount of capital” for an E-2 visa can require a foreigner to “spend” more money to obtain an E-2 visa than for other “non-investment” visas (although this investment aspect does offer the foreigner the possibility to directly earn a return and profit on such investment and thereby recoup some of the foreigner’s total expenditure of funds).
Time to Obtain E-2 Visa
The precise time to obtain an E-2 status or visa will vary from case to case based on the specific factual circumstances of each situation.
For applicants in the United States, it will take approximately 8 months on average to obtain an E-2 status. To expedite the processing of an E-2 application, with “premium processing” (as described above), USCIS will process Form I-129 in 15 days.
For applicants out of the United States, it will take approximately 4-8 months on average to obtain an E-2 visa.
Advantages of E-2 Visa
- Lower investment amount compared to EB-5 investment green card
- No academic degree requirements for applicants
- Long validity period and can be renewed without times limit
- Spouse of E-2 investor can work for any employer in the U.S.
- Unmarried child under 21 years of age of E-2 investor can study in any U.S. public school until 21 years of age
Special E-2 CNMI Investor Visa
A special type of E-2 visa is the E-2 CNMI investor visa. This special E-2 visaclassification allows foreign, long-term investors to remain lawfully present in the Commonwealth of the Northern Mariana Islands (“CNMI”) through December 31, 2029, while they resolve their immigration status. This classification is intended to help as the CNMI transitions from the CNMI permit system to U.S. immigration laws.
Conclusion
In the “alphabet soup” of U.S. immigration benefits, it is important to distinguish the general E-2 visa from other “E-named” visas.
First, the E-2 visa is distinct from various “EB” visas (EB-1, EB-2, EB-3, EB-4, and EB-5). E-2 visa is one of non-immigrant work visas. The “EB” visas mean employment-based immigrant visas or commonly known as green card. A green card provides the foreigner the permanent right to live and work in the United States.
Second, the E-2 visa is distinct from the E-1 visa and the E-3 visa (although both also are temporary visas and not green cards). An E-1 visa can be obtained by a foreigner who must be a national of an “E-1 visa qualifying/treaty country” (which may not be the same as an “E-2 visa qualifying/treaty country”), carry on substantial trade, and carry on principal trade between the United States and the “E-1 visa qualifying/treaty country”. An E-3 visa can be obtained by a national of Australia who must have a legitimate offer of employment in the United States, have the necessary academic or other qualifying credentials, and fill a position that qualifies as a specialty occupation.
The E-2 visa has its own unique requirements, distinct from those of other “E-named” visas. If a foreigner is a national of an “E-2 visa qualifying/treaty country”, can invest “a substantial amount of capital”, and can meet the various other requirements of E-2 visa status, the foreigner can obtain an E-2 visa and be admitted to the United States.
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