Basically, the E-2 nonimmigrant classification allows a foreign national to work in the U.S. to further a substantial investment in a U.S. enterprise belonging to citizens of a treaty country. A treaty country is a nation that holds a bilateral investment, commerce, and navigation treaty with the U.S.
A list of E-2 treaty countries can be found by clicking here:
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
To qualify for the E-2 classification the foreign national must be a national of the treaty country; the U.S. business entity must be owned by at least 50% of nationals of the treaty country; the investment in the enterprise must be substantial; and the foreign national must be the investor seeking to undertake an executive or supervisory position or possess specialized skills.
The investor may be an individual or a corporate entity. The investment enterprise must be owned by at least 50% of the nationals of the treaty country. The enterprise can choose to purchase an existing business or establish a new one. Regardless, this enterprise itself must be an operating business and be capable of providing income for more than only the investor and family or making a significant economic impact. Although the investment may be prospective the funds must be placed at risk and irrevocably committed. Moreover, the amount of the funds must be substantial. A substantial amount of capital is sufficient to ensure the successful operation of the enterprise; there is no fixed amount. In determining what is substantial, the amount invested is compared to the total cost of establishing a viable enterprise to arrive at a percentage of investment. The percentage of required investment increases as the value of the enterprise decreases. For instance, if the value of the enterprise is less than $500,000 closer to a 100% investment may be required. On the other hand, for an enterprise valued at more than $500,000 an investment of upwards of 60% may be sufficient.
Please note that the E-2 Treaty Investor classification is a nonimmigrant status. It does not confer permanent residence (a green card). For a green card, there is an employment-based category based on investment (EB-5—can we make it so click on it and go to that page).
E-2 Employees
The two types of employees that qualify for the E-2 classification include: (1) Managers and Executives and (2) Specialists or Essential Skilled Workers.
Managers and Executives should be seeking to develop and direct the investment enterprise. These positions are often filled by the investors themselves. These individuals must establish they possess the background education and experience required to carry out the proposed duties.
Such personnel should be able to demonstrate their executive or managerial pedigree, though there is no requirement that they have worked for the principal trader or investor for at least one year, as there is with the L1 visa. Generally, a resume and supporting letter from the principal is all the evidence required.
Essential or Specialized employees must provide services that are essential for the enterprise to operate. The enterprise must demonstrate that a qualified U.S. worker was unavailable and that such U.S. workers will be trained to replace the employee. Consequently, it is more difficult to extend the stay of this type of employee.
Process
Unlike many other employment-based nonimmigrant classifications an application for an E-2 visa may be made directly at the U.S. Consulate; no pre-visa USCIS petition is required. If the candidate is residing in the U.S. a change of status may be filed with USCIS.
Duration
If the application is made at a U.S. Consulate, the E-2 visa, initially, is issued for a five-year period. While residing in the U.S. E-2 extensions for up to two years are permitted. There is no limit on the number of extensions.
If an extension petition is pending, the foreign national may continue the ongoing L employment for 240 days beyond the expiration date of the current L status.
Dependents
The E-2 employee’s spouse and minor children under 21 may apply for an E-2 status which allows for some forms of education. The E-2 spouse may apply for employment authorization. The spouse or child does not need to be from a treaty country. The spouse of a permanent resident may also qualify for an E-2 status.
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