E2 VISA FOR TREATY INVESTORS

Requirements

• 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 in a bona fide enterprise in the United States; and
• Seeking to enter the United States solely to develop and direct the investment enterprise.
  • This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

USCIS filing fee

• Substantial in proportion 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
• 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.

According to USCIS, a bona fide enterprise is “a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for a profit.”

Marginal enterprises are not considered bona fide enterprises as they do not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his/her family.

Even if a new enterprise lacks the current capacity to generate income, it may avoid being considered a “marginal enterprise” by projecting the capacity to generate income within 5 years from the treaty investor’s E-2 classification.

Requirements

• Same nationality of the principal alien employer (who must have the nationality of the treaty country);
• Meet the definition of “employee” under relevant law; and
• Either be engaging in duties of an executive or supervisory character or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual:

It must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must either:

• be maintaining nonimmigrant treaty investor status or
• if the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors. 

“Executive or supervisory character”

Employee has complete control and responsibility for the enterprise’s overall operation or a major component of it.

“Special qualifications”

Employee’s services are essential to the operation of the treaty enterprise:

• The degree of proven expertise in the employee’s area of operations
• Whether others possess the employee’s specific skills
• The salary that the special qualifications can command
• Whether the skills and qualifications are readily available in the United States

For an Existing Enterprise: (show purchase price)

• Tax valuation
• Market appraisal

For a New Enterprise: (show estimated start-up cost)

• Trade Association Statistics
• Chamber of Commerce Estimates
• Market Surveys

Source of Investment:

• Personal statement of net worth prepared by a certified accountant
• Transactions showing payment of sold property or business (proof of property ownership and promissory notes) and rental income (lease agreements)
• Voided investment certificates or internal bank vouchers and appropriate bank statement crediting proceeds
• Debit and credit advices for personal and/or business account withdrawals
• Audited financial statement
• Annual report of parent company

Evidence of Investment:

Existing Enterprise:

• Escrow documents
• Signed purchase/sales agreement
• Closing and settlement papers
• Loan or mortgage documents
• Promissory notes
• Financial reports
• Tax returns
• Security agreements
• Assumption of lease agreement
• Business account statement for routine operations

New Enterprise:

• Inventory listing, shipment invoices of inventory, equipment or business related property
• Receipts for inventory purchases
• Canceled checks or official payment receipts for expenditures
• Canceled check for first month’s rent or full annual advance rent payment
• Lease agreement
• Purchase orders
• Improvement expenses
• Initial business accounts statements
• Wire transfer receipts

Executive/Managerial/Supervisory/Essential Skills:

• Letter from E-2 enterprise providing specific information on the applicant and the reasons for his/her assignment to the U.S.
  • The letter must explain the employee’s role in the U.S. company (job title and duties), the applicant’s executive or supervisory responsibilities or, if not a supervisor, his/her specialist role, the level of education and knowledge required by the employee’s position, his employment experience, progression of promotion or high level training or special qualifications and the reasons why a U.S. citizen or legal permanent resident cannot fill the position (if the position is not managerial or supervisory)
• Letter from responsible official at U.S. company or office identifying the need for assigned employee.
• Organizational chart showing current staffing pattern at U.S. company
• Evidence of executive, supervisory or specialized knowledge, education, experience, skills or training, such as certificates, diplomas or transcripts.

• Initial stay of 2 years maximum
• Extension of stay in E-2 granted in up to 2-year increments
  • No limit on extensions on E-2
• Change of Status to E-2 granted in up to 2-year increments
• All E-2 must maintain an intention to depart when their status expires or is terminated
• If traveling abroad, upon returning, U.S. Customs and Border Patrol Officer may grant an automatic 2-year period of readmission.