E2 Treaty Investors Visa

E2 Treaty Investors Visa

A national from a treaty country (a country with which the United States maintains a treaty of commerce and navigation) may apply to be admitted to the United States if the national invests a substantial amount of capital into a U.S. business. If an E2 Treaty Investors Visa is granted, the national may be permitted maximum initial stay of two years. Requests for an extension of the stay may be granted in increments of up to two years each, with no maximum limit to the number of extensions that may be granted. Certain employees of such a person or of a qualifying organization may also be eligible for this classification upon meeting certain qualifications.

Please refer to the U.S. Department of State’s Treaty Countries for an updated list of countries with which the U.S. maintains a treaty of commerce and navigation.

If the treaty investor is currently lawfully residing in the United States a Form I-129 must be filed by the treaty investor in order to request a change of status to E2 classification. If the application is for a desired employee that is lawfully residing in the U.S., a qualifying employer may file a Form I-129 on the employee’s behalf. A request for E2 classification may not be made on a Form I-129 if the person for who such Form is being filed is physically outside of the U.S. Such person , and must consult the U.S. Department of State for further information about applying for an E2 visa while such person is abroad.

The applicant must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation;
  • Have invested, or be actively in the process of investing, a substantial amount of capital into a bona fide (i.e., real, active and operating commercial or entrepreneurial undertaking for profit) enterprise in the United States (there must be a commercial risk present, with the objective of generating a profit, i.e., capital must be subject to partial or total loss  in the event that the investment fails); and
  • Be seeking to enter the United States solely to develop and direct the investment enterprise.  This may be established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

A substantial amount of capital is:

  • 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; and
  • 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. 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 E2 classification begins.  See 8 CFR 214.2(e)(15).

Applying for an E2 visa is a great opportunity to work and live in the United States, but the application process can be complex and daunting.  If you believe that you qualify for an E2 visa, then contact the attorneys at AKTAS | HINDEN today.