E-2 nonimmigrant visa classification is designed for treaty investors. Treaty investors are individuals who direct the operations of an enterprise in the U.S. in which they have invested or are actively investing a substantial amount of capital. Similarly to E-1, to qualify for an E-2 visa, the individual must meet several E-2 visa requirements. This individual must be a national of a country with which the U.S. maintains a treaty of commerce and navigation, a qualifying international agreement, or that has been deemed qualifying through legislation. A current list of qualifying countries can be found on the Department of State website. The individual 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. and be seeking to enter the U.S. solely to develop and direct the investment enterprise. This is demonstrated by showing that the treaty investor has at least 50% ownership of the enterprise or possesses operational control through a managerial position or other corporate devices.
“Investment” refers to the treaty investor placing capital, which can include monetary funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. This capital must be subject to partial or total loss if the investment fails. The treaty investor must also show that the funds have not been obtained either directly or indirectly from criminal activity. A “substantial” amount of capital refers to capital that is substantial in relation to the total cost of either purchasing an established enterprise or establishing a new one, is sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise, and is of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
A “bona fide” enterprise refers to a real, active, and operating entrepreneurial undertaking that produces services or goods for profit. This enterprise must meet all applicable legal requirements for doing business within its jurisdiction. The investment enterprise must also not be considered marginal.
A “marginal” enterprise is one that does not have the present or future capacity to generate enough income to provide more than living just for the treaty investor visa holder and their family. Although a new enterprise might not generate a large amount of income, it should demonstrate that it will have the capacity to generate more than a marginal amount of income within five years from the date that the treaty investor’s E-2 visa will begin.
E-2 visas can also be issued to employees of treaty investors. To qualify, the individual must meet the definition of “employee” under relevant law, be of the same nationality as the main employer who has the nationality of the treaty country, and be engaging in duties of an executive or supervisory position, or have special qualifications. If the principal employer is not an individual, it must be an enterprise or organization that is at least 50% owned by individuals in the U.S. who possess the nationality of the treaty country. These owners must be maintaining E-2 status or, if not in the U.S., otherwise be classifiable as E-2 treaty investors.
If the employee’s duties are executive or supervisory, they must primarily provide the employee ultimate control and responsibility for the treaty enterprise’s overall operation or a major component of it. Special qualifications refer to skills or aptitudes that make the employee’s services essential to the efficient operation of the treaty enterprise. Many factors can potentially qualify under this requirement, including:
You do not have to represent yourself to advance your E-2 visa application. Ellen Freeman and her team of legal experts are here to assist you in obtaining an E-2 trader visa. Give us a call or submit a consultation request through the contact form below.