The E2 Visa is a nonimmigrant visa available to countries with bilateral investment, commerce and navigation treaties with the United States. This is a good option to consider when a company, owned by foreign nationals, wishes to transfer their home - grown employees to the U.S.
For a foreign investor to qualify for this visa, the requirements are two-fold: first, he must make a substantial investment in a United States company and second, he must come to the United States to develop and direct the business operations of that enterprise. For an alien to qualify to the E-2 treaty investor classification under section 101(a)(15)(E)(ii) of the Immigration and Nationality Act, the following requirements must be met:
- The investor's home country maintains a treaty of commerce and navigation or bilateral investment with the United States;
- The investor has made a substantial investment (typically $25,000 or more) in the US business
- The business in which the investment is made is not less than 50 percent owned by citizens of the treaty company;
- The investor intends to come to the United States to direct the operations of the enterprise in a capacity that is either executive, supervisory or involves specialized skill;
- The investor possesses means of support independent of the enterprise
The E-2 visa was created precisely to encourage international trade and investment. The obvious advantages that exist under E-2 visa processing are: 1) absence of specialized degree requirement, unlike in H1B visas; 2) lack of Labor Condition requirements; 3) no limitation on maximum allowed stay; 4) no requirement for 1 year prior employment with the foreign parent company; and 5) convenient Consular processing.
What is Substantial Investment?
The crux of the matter is - how much money are we talking about? How much is the capital that may be considered "substantial investment"? There is no fixed amount of investment necessary to qualify for an E-2 visa, although as a general rule of thumb, a minimum of $25,000 is a safe figure. The investment has to be substantial in relationship to the total cost of either purchasing or creating an enterprise and sufficient to ensure and support the successful development of the enterprise. This also means indebtedness secured by the assets of the company is not considered a qualifying investment. If the company is engaged in neither substantial trade nor substantial investment, it's best to consider the L-1 'new office' option. In addition, the investment funds must have been gained by legitimate means and be controlled by the treaty investors.
Employees and Their Family Members under the E Status
Two classes of employees may be accorded E-2 status: treaty national serving in a managerial capacity and treaty nationals who serve in technical capacities requiring special training and qualifications. In effect, these employees must be essential for the company's operation because U.S. workers do not have the necessary skills to fill the positions. It is expected, whenever possible, that the company will train U.S. workers will to fill these positions.
Once in the U.S. under the E status, employees themselves are clearly prohibited from engaging in employment for a third party. These employees must work for their E employer. The employees may also work on behalf of related companies of the employer, i.e., the parent treaty organization or any subsidiary or affiliate of the parent organization if such intent or possibility was disclosed at the time of application. As for the spouse and unmarried minor children of an E-2 visa holder, they will also qualify for E-2 visas, however, they will not have the right to work in the United States.