Law Blog

IMMIGRATION: WORK VISAS (E-2 Step-by-Step)

Our office caters to foreigners seeking to work in the US.  The following is an overview of the key issues related to obtaining an E-2 Visa in a step-by-step format.  Going through this exercise will help you determine if an E-2 Visa is right for you. 

Are you already present in the United States?

If you are currently in the US as a lawful nonimmigrant, you may request a change of status to E-2 classification. If that is your situation, you can file Form I-129 to petition an adjustment of your status.

 

Are you outside of the United States?

You will not request a change of status if you are outside of the United States. Instead, you will go through the application process and, once the visa is issued, you will apply to a DHS immigration officer at a US port of entry for admission as an E-2 nonimmigrant.

 

What are the qualifications?

To qualify for E-2 classification, you must:

  • Come from a treaty country (click here for treaty countries List_of_Treaty_Countries)
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the US.
  • Come to the US solely to develop and direct the investment enterprise.  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

More on Immigration

What is considered an “investment”?

To make a qualifying investment, you have to place money or other assets “at risk” for the purpose of generating a profit.  That is pretty much the definition of starting any real business. So, as long as you are making a genuine attempt to start a company in the US, you should be making a qualifying investment.

The reason the USCIS insist the money be “at risk” is that they do not want you to hedge your bet by making an arrangement beforehand that would allow you to get your money back if the visa is not approved.  That is not permitted.

The capital must be subject to partial or total loss if the investment fails. Also, be aware that you must show the funds have not been obtained, directly or indirectly, from criminal activity.  So, you will need to demonstrate where the money for your investment came from.  Our office will help you with this.

 

How much is “substantial”?

This is, of course, a key question.  What you want is a dollar figure, but the USCIS does not provide that. Instead, they give you these guidelines:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty 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.

We realize these criteria are somewhat ambiguous. You might even say they are no help to you at all.

So, for what it is worth, there is somewhat of an unspoken guideline that $100,000 or more will likely be considered “substantial.”

That is not a rule; just a guideline.  However, having something concrete in mind may help you plan your business venture.

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.

 

What is a “marginal” enterprise?

Your business venture may not be marginal.  A marginal enterprise is one that does not generate more than enough income to provide a minimal living for you and your dependents.

Now, it is true that some businesses take time to become profitable. The USCIS understands that. So, in some cases, you can meet this criteria if the enterprise has the capacity to generate sufficient income within five years from the date that the treaty investor’s E-2 classification begins.

 

What are the qualifications for an Employee?

To qualify for E-2 classification, the employee must:

  • Be the same nationality of the employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in duties of an executive or supervisory character, or, if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the US 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).

 

What does “executive or supervisory” mean?

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.

 

What are “special qualifications”?

“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:

  • 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
  • Whether the skills and qualifications are readily available in the United States.

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.

 

How long does the visa last?

Qualified treaty investors and employees will be allowed a maximum initial stay of two (2) 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.

What are the terms and conditions?

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:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

 

What is a “substantial if change” in terms or conditions?

The 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.

Be aware that a strike or other labor dispute involving a work stoppage at the intended place of employment may affect your status if you are from Canada or Mexico.

 

What about family members?

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-2 spouse may work.

You may travel abroad and will generally be granted an automatic two-year period of re-admission when returning to the United States. Your family members will not have such an easy time, however, unless they are traveling with you.

To remain lawfully in the US, family members must carefully note the period of stay they have been granted in E-2 status and apply for an extension of stay before their own validity expires.

You will likely have more questions about the Work Visas.  Please call our office for a free consultation.

You can also get additional information here:  E-2_Requirements .

If it turns out the E-2 program is not right for you, consider the H-1B Visa and L-1 Visa programs as alternatives.

 ~ Jeff Harrington, Esq.

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