E-2: Temporary Nonimmigrant Treaty Investor Visa
Overview
The E-2 “Treaty Investor” visa is open to certain foreign nationals who are coming to the U.S. to develop and direct the operation of a business. Unlike most other visas, the E-2 is not open to the entire world, but only available to those nationals of certain countries in which the U.S. maintains treaties of commerce and navigation. The E-2 visa provides relatively fast entry into the U.S. by allowing applicants the opportunity to apply directly with a consulate abroad; no petition to USCIS is needed. While there is no statutory or regulatory limitation on the number of times an E-2 visa may be renewed, it does not in and of itself allow for permanent residency (a “Green Card.”) It may, however, be used in conjunction with a Direct EB-5 process or perhaps even an EB-1-C provided that those qualifying criteria are independently met.
Requirements
- Nationality: The investor (either a real or corporate person) must be a national of a treaty country and the entity must hold that same nationality. Under the law, a U.S. entity may qualify as an E-2 enterprise if it is owned by 50% or more by treaty nationals.
A list of treaty countries can be found on the Department of State’s web site. Unfortunately, no present E-2 treaties exist between the U.S. and Brazil, Russia, India, or China. However, if an applicant has dual nationalities, s/he may utilize the E-2 qualifying passport for the purposes of securing the visa. The U.S. maintains treaties with some countries that allow the ability to obtain citizenship relatively quickly through their respective immigrant investor programs, which may present an option for nationals of countries where no treaty is available.
- Substantial, At-Risk Investment: An investment must be substantial enough to ensure the successful operation of the business. Unlike the EB-5 immigrant visa, there is no per se minimum threshold amount, rather the investment generally needs to be substantial in a proportional sense to the start-up costs or purchase price of the E-2 enterprise. Accordingly, an investor seeking to open a café would have a lower minimum investment threshold than an investor seeking to open a manufacturing plant.
- Real, Active, and Operating Entity: The E-2 investment must be made in an entity that is already in active business operations, or will be able to commence operations immediately following issuance of the visa. Certificates of incorporation, contracts, letters of intent, a business lease, and similar documentation is generally required for start-ups.
- Marginality: An investment must generate an income and employment for more than just the investor. Simply providing a basic living for the investor and his/her family, as self-employment, will not qualify. Likewise, noneconomic activity such as the mere purchase of real estate will not qualify. Unlike the Direct EB-5 visa, job creation is not quantified nor must job creation be direct hires by the E-2 entity. Start-ups generally require a comprehensive business plan.
Process
The E-2 visa does not require an investor to file a petition with USCIS. Instead, the investor may file an application directly with a foreign consulate abroad. Each consulate has varying requirements and processes for application submission, however, the visa is generally issued in a matter of weeks or months following submission. In person consular interviews are usually required.
The consulate will issue an E-2 visa with a duration that varies based on the country of nationality’s reciprocity for U.S. citizens. Most nationals are able to secure visas valid for a period of five years, which is the maximum allowable.
It is important to distinguish the difference between visa validity and authorized stay. Each E-2 entry, regardless of validity time remaining on the visa, allows for admission and authorized stay of up to two years. With a valid visa, E-2 visa holders may depart the U.S. and reenter to secure a new 2-year admission. In other words, even if the visa has not expired, an E-2 visa holder would need to depart the U.S. and return prior to expiry of stay. Alternatively, s/he may file for an extension through USCIS. Once the visa expires and the E-2 holder departs the U.S., a new E-2 submission is required at a consulate abroad.
Spouses and dependent children of E-2 visa holders obtain their own E-2 visas. Spouses may apply for work authorization, allowing them the opportunity to work in the U.S. for any entity. Children do not qualify for work authorization; however, they may attend public or private schooling without student visas until the age of 21.
Hiring of Foreign Nationals
Importantly, the E-2 visa can also be used to hire non-investor nationals to be employed by the E-2 entity. Specifically, individuals possessing a passport of the E-2 entity may be hired as Managers, Executives, Supervisory, or Essential Skills employees. Unlike other nonimmigrant employment visas such as the H-1B, no filings with the U.S. Department of Labor are required.
Extensions and Permanent Residency
Although intended to be temporary, there is no numerical limit on the number of E-2 visas that one may secure. Renewal applications may be made at a consulate abroad, or if no international travel to be planned, an extension petition filed with USCIS.
The E-2 visa does not in and of itself provide a path to a Green Card. However, E-2 investments might be able to qualify or be modified to be able to secure a Direct EB-5 immigrant visa. An alternative path to permanent residency may exist if the E-2 visa holder possesses the qualifying experience abroad and there exists a foreign qualifying entity relevant to securing an EB-1-C immigrant visa.