E-2 Treaty Investor Visa: Requirements and Status
To qualify for temporary E-2 treaty investor status, both the investor and the company must meet certain requirements, as follows.
To hold an E-2 visa, the applicant must be a citizen of a country with which the United States has an investment treaty. Currently, the US has investment treaties with more than 75 countries. The company must be majority-owned by citizens of the treaty country. The ownership interest of citizens of the treaty country who are also permanent residents of the United States cannot be counted toward the majority treaty country ownership needed for a treaty investor company. If ownership changes so that citizens of the treaty country no longer own a majority of the company, the E-2 visa and status are automatically terminated. Also, if the investment treaty between the United States and the treaty country should cease, the E-2 visa and status are automatically terminated. All foreign owners of the company who live in the US must hold either E-2 or permanent resident status.
The investor(s) must establish or purchase a US company through a “substantial investment of capital.” The term “substantial” means that the amount of money invested must either be (1) more than 50% of the net asset value of the enterprise, or (2) an amount sufficient to assure the economic success of the enterprise.
For example, if the investor’s business is a start up, the investor must provide a complete business plan. If the plan shows that the business will require working capital of $200,000 before it breaks even, the minimum investment amount to obtain the visa is $200,000. If the investor will acquire an existing business valued at $450,000, the minimum investment amount to obtain the visa is $225,000, 50% of the value of the business.
Such investment must be the investor’s equity capital contribution or debt capital (loans) secured by the investor’s other assets. Loan amounts which are secured by the business assets do not qualify as “investment” for E-2 purposes. At the time the E-2 application is filed, the investment capital must have already been invested, or must be irrevocably committed to the enterprise through an escrow agreement. The enterprise must be a real, active, and operating commercial business which produces services or goods for profit. The enterprise must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.
A person may be issued a treaty investor visa either as the owner or an employee of the treaty company. A treaty investor owner must develop and direct the enterprise by exercising operational control through a managerial or executive position. A treaty investor employee must qualify as an Executive, Supervisory, or Essential Skills Employee. Executive or Supervisory employees must have ultimate control and responsibility for the firm’s overall operations or a major component of the company. The Executive or Supervisory employee will also need to document the number and skill levels of the employees supervised, the level of pay, and his or her executive or supervisory experience or education. The Essential Skills employee must possess specialized skills which are needed for the efficient operation of the business. He or she will not be permitted to perform ordinary duties but is instead a key employee who will render services that a US worker would not be able to provide.
A person holding E-2 status as a treaty investor (either owner or employee) may have the spouse and minor unmarried children reside in the US as dependents. The dependents are also given E-2 status. E-2 children are not permitted to work in the US. An E-2 spouse may obtain an unrestricted work permit. A treaty investor who is an owner, executive or supervisor may work in the US for the sponsoring company in one or two year increments for as long as he or she continues to work for the qualifying business, and the treaty between his or her country of citizenship and the US remains in force. A treaty investor who is employed in an “essential skills” area may work in the US normally for only two years. An E-2 visa holder is usually admitted for a two year period of stay each time he or she enters the US
E-2 visa holders need not maintain a foreign residence, as long as they state their sincere intention to leave the United States if their E-2 status expires. Also, the fact that the investor has been petitioned for permanent residence is not a sufficient reason alone to deny E-2 status or visa. Consequently, treaty investor status may be attractive to a person who wishes to live in the US indefinitely without becoming a permanent resident.
If the applicant is present in the US in lawful temporary status, he or she may normally file for change of status to E-2 with the Citizenship and Immigration Service (USCIS). The USCIS usually processes the application within a few months. The USCIS can provide 15 day “Premium Processing” for an E-2 application upon payment of the premium processing fee. Upon approval, the USCIS will issue the investor and dependent family members in the US new I-94 cards as evidence of treaty investor status. Extensions of E-2 stay inside US are filed with the USCIS and processed within a few months. The USCIS cannot issue an E-2 visa stamp in one’s passport.
If the treaty investor or family member will travel outside the United States, he or she will need to obtain an E-2 visa stamp in the passport in order to reenter the US The application for the E-2 visa is filed with the American Embassy in the investor’s home country. The Embassy usually processes the E-2 visa application within a few weeks. The E-2 visa is normally valid for multiple entries into the US for up to five years. Extensions of the E-2 visa stamp in the passport are filed with the American Embassy in the investor’s home country and processed within a few weeks.
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