E-2 Visa Classification

An E-2 visa is a nonimmigrant visa classification that is reserved for treaty investors in the United States. It allows an individual to work in the United States based on his or her controlling investment in the United States. Individuals who are already in the United States and hold a different type of visa, may be able to file to change their status to E-2.

To qualify for E-2 classification, a treaty investor must meet the following criteria:

  1. There is a treaty in existence;
  2. The individual/entity is from the same nationality as the treaty country;
  3. The applicant has invested or is actively investing;
  4. There is a real and operating commercial enterprise;
  5. There is a substantial investment;
  6. The investment is not marginal;
  7. The applicant will be developing and directing the business;
  8. The applicant, if working as an employee, is an executive, supervisory, or essential employee; and
  9. The applicant intends to leave the United States at the conclusion of their authorized stay.

The United States Department of State maintains a list of treaty countries, which can be viewed at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html.

The term “investment” refers to the treaty investor placing capital (i.e. money or other assets, such as equipment) at risk with the intention to generate a profit. The capital must be at risk of being lost, either wholly or in part, if the business venture fails. The treaty investor must have already invested or be in the process of investing funds into a U.S. business. It is not enough to have a business plan or even to show that an investor has funds available; they must have irrevocably committed at least some capital to a business enterprise. The business enterprise must already have been created and must be at least in the process of getting up and running.

A “substantial investment” is one which is a substantial portion of the capital needed to establish and/or run the business. It must be large enough that the treaty investor is truly committed to ensuring that the business succeeds (i.e. the treaty investor must feel that he has a large amount of capital at stake in the business). Generally speaking, for lower cost business ventures, the percentage of capital invested by the treaty investor should be higher.

A “marginal investment” is one which will not ensure, either now or in the future, at least a minimal living for the treaty investor and his or her family members. Essentially, the treaty investor and his or her family should be able to support themselves off of the profits of the business, either now or within five (5) years.

The treaty investor must not be a silent partner in the business. They must be actively involved in developing and directing the business.

For employees of a treaty investor, then they must be in an executive, supervisory, or essential function to qualify for an E-2 visa; not all employees of a treaty investor will qualify for E-2 status. The employee must be the same nationality as the treaty investor.

If you are in need of an attorney to help you with your E-2 visa application or you need more information regarding the E-2 visa process, the attorneys at Tanner Law Offices can assist you. Please contact our office at (717) 731-8114 to schedule a consultation to discuss your case.

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