E-2 Visa for Treaty Investors

The E-2 visa allows business people from certain countries (Bangladesh is one of those) to work in the U.S. for a business in which they invest. However, please do not confuse E-2 treaty investor visas with green cards through investment (EB-5). While EB-5 requires an I million dollar investment or more, an E-2 visa has no dollar minimum set in law.

Key Features of the E-2 Visa

Let us review some of the pluses, minuses, and issues surrounding the E-2 visa:

1. The treaty investor and individual employees can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the investor, so long as the country of which the investor is a national has a treaty with the U.S.

2. While in the U.S., the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.

3. Initial visas may last for up to five years (depending on your country of origin), with unlimited extensions. The length of the visa depends upon the visa “reciprocity” agreement between the U.S. and the foreign country and upon the viability of the business. (New companies receive shorter validity periods.)

4. Each time E visa holders (workers or family members) enter the U.S., they receive a period of stay of up to two years. They also may extend their stay while remaining in the U.S.

5. Visas are available for an accompanying spouse and minor, unmarried children.

6. The spouse, but not children, may apply for a work permit once physically present in the U.S.

Some people call the E-2 the next best thing to U.S. permanent residence, because it is possible to obtain via self-employment, and it comes with an unlimited number of extensions. Also, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.

Qualification Criteria for an E-2 Treaty Investor Visa

There are six requirements for getting an E-2 visa:

1. The applicant must be a citizen of a country that has a relevant treaty with the United States.

2. The applicant must be coming to work in the U.S. for a company that he or she either owns or at a minimum of 50% owned by other nationals of the country of origin.

3. The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.

4. The applicant or the company must have made a substantial investment in the U.S. business. (There is no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business.)

5. The U.S. company must be actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers.

6. The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.

How to Sponsor a Foreign Worker Who is Already in the U.S. for an E-2 Visa

The application process is entirely different when seeking a new status for a prospective E-2 worker in the U.S. rather than applying for an entry visa.

Under the E-2 “treaty investor” nonimmigrant visa category, a U.S. business established by substantial investment and at least 50% owned by citizens of a country with an authorizing treaty with the U.S. can temporarily hire workers from that same country to perform executive, supervisory, and essential-skills jobs. The principal investor in such a business can also use this visa category to secure temporary U.S. status. A principal investor who is in the U.S. must be in E-2 status in order to employ E-2 workers. Once an employer determines that the business and prospective employee can meet the E-2 eligibility requirements, it needs to figure out where and how to apply.

Filing a Nonimmigrant Worker Petition With USCIS

An employer can file a petition with U.S. Citizenship and Immigration Services (USCIS) to change the status and extend the stay of a prospective employee in the U.S. in another nonimmigrant status.

The form used for this is USCIS’s Petition for a Nonimmigrant Worker, Form I-129. It consists of several pages requesting information required for all types of nonimmigrant worker petitions, followed by several sets of additional pages for the specific visa categories. The E supplement, consisting of two pages immediately following the general section, requires the employer to set forth the E-2 qualifying characteristics of the business and prospective employee.

USCIS publishes instructions for Form I-129, but since it is used for all types of nonimmigrant worker petitions, the instructions for anyone type can be sketchy. As outlined there, these are the kinds of documents an employer can submit to establish that the business meets the E-2 requirements:

1. Evidence of possession and control of investment funds: bank records, financial statements, loans, savings, promissory notes.

2. Evidence of remittance of funds to the U.S.: bank drafts, transfers, exchange permits, receipts.

3. There is evidence of business establishment in the U.S.: articles of incorporation, partnership agreements, organization and staffing charts, shares, titles, contracts, receipts licenses, leases.

4. Evidence of investors’ nationality: passports, articles of incorporation of the parent company, stock exchange listings.

5. Evidence of investment in the U.S.: titles, receipts, contracts, loans, bank statements.

6. Evidence of the substantiality of the investment: financial statements, audits, corporate tax returns.

7. Evidence that the enterprise is not marginal: payroll records, payroll tax forms, personal tax returns, or other evidence of personal income and assets.

8. Evidence that the enterprise is a real, operating business: annual reports, catalogs, sales literature, news articles.

Of course, form instructions can provide only general guidance. No list of supporting documents could cover all types of E-2 eligible businesses. What documents a business presents depends on its nature. For instance, a publicly-traded corporation might show the requisite foreign ownership through a stock exchange listing, while a closely held corporation will typically present copies of stock certificates and owners’ passport identification pages.

To establish that the business is not marginal, a sole proprietor might present personal income tax returns, proving that it generates more than enough income to sustain the investor’s family. At the same time, a larger company would submit evidence such as payroll records to prove it generates economic activity by employing people.

In addition to the documents qualifying a business, it will need to submit evidence that the prospective employee meets the E-2 requirements and is eligible to change status:

1. Evidence of nationality: Passport identification pages

2. Evidence of current nonimmigrant status: I-94 card (for a description of the I-94 card, see discussion below about maintaining status)

3. Evidence of qualifications: Resume, diplomas, certificates, as relevant

The E-2 petition packet needs a good cover letter to assist the USCIS adjudicator in making sense of the documents and how they satisfy the E-2 requirements.

Filing Fees and Locations

The USCIS petition fee is $460. It is ordinarily paid by a check or money order made out to the U.S. Department of Homeland Security and submitted along with the petition. (A credit card can be used only when submitting to a USCIS lockbox, but the I-129 goes to a regular USCIS service center.)

Reasons to Consider Consular Processing, Even for Workers in the U.S.

USCIS typically grants E-2 status for an initial term of two years. If the prospective E-2 hire contemplates travel outside the U.S. during the first two years of employment, consular processing might make the most sense, even when a USCIS petition is possible.

This is because the employee will need to get a visa at a consular post to re-enter the U.S., and, unlike other types of nonimmigrant petitions, the E-2 petition has no force at all at a consular post. Whereas, say, an H-1B employee needs only present an approved unexpired USCIS petition at a consulate abroad to support the basic visa application form, an E-2 employee will need to make a completely new visa application with all the required supporting documents: So why not just go for a visa from the outset?

How to Maintain E-2 Status in the U.S.

Upon approving an E-2 petition, USCIS issues an approval notice to the employer that includes a status document. The notice is perforated so that one can tear off the bottom portion, the I-94 card, and give it to the employee to serve as evidence of status. The employer and employee must track the expiration date on the I-94. Typically, E-2 status is granted for an initial two-year term.

Before the I-94 expires, the employer can extend your employee’s status by filing a second petition with USCIS. Theoretically, E-2 status can be extended indefinitely by the filing of a petition every two years. However, USCIS does require persuading each time anew, and employers are frequently asked to present some evidence that U.S. workers are not available for the job in question.

An employee who has processed abroad for an E-2 visa will usually be admitted with two years of stay on entering the United States. Since the visa itself is typically issued for a five-year term, the visa-holding employee will have an alternative to a USCIS petition for extending status, namely traveling and re-entering.

With each reentry during the life of the visa, the immigration officer at the point of entry should grant a new two-year period of stay. Thus, through strategic traveling, an E-2 visa holder could parlay a five-year visa into a seven-year stay without reestablishing the E-2 qualifications.