The E-2 nonimmigrant visa category applies to a national of a treaty country (a country with which the U.S. maintains a treaty of commerce and navigation) to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business.
Criteria for Treaty Investor:
- The investor must be a national of a treaty country;
- The investor must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S.;
- The investor must be seeking to enter the U.S. 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;
- The investor must show that the investment funds have not been obtained, directly or indirectly, from criminal activity;
- The investor must show that the investment funds are at risk, subject to partial or total loss if the investment fails;
- 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.
Criteria for the Employee of a Treaty Investor:
- The employee must be the same nationality of the principal alien employer;
- The employee must meet the definition of “employee” under relevant law;
- The employee must either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications; and
- The employee may also work for the treaty organization’s parent company or one of its subsidiaries.
Period of Stay:
- The initial period of stay is up to 2 years for treaty investors and employees. May extend status indefinitely in increments of up to 2 years each.
- An E-2 nonimmigrant who travels abroad may generally be granted an automatic 2-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.
- All E-2 nonimmigrants must maintain an intention to depart the U.S. when their status expires or is terminated.
Family of Treaty Investor and Employee:
- Spouse and unmarried children under the age of 21 may come to the U.S. under E-2 status, and their nationality need not be the same as the treaty investor or employee.
- The E-2 treaty investor or employee may travel abroad and will generally be granted an automatic 2-year period of readmission when returning to the U.S. Unless the family members are accompanying the E-2 treaty investor or employee, the new readmission period will not apply to the family members.
- Spouses are permitted to work.