E-2: Temporary Nonimmigrant Treaty Investor Visa
The E-2 “Treaty Investor” visa is open to
certain foreign nationals who are coming to the U.S. to develop and direct the
operation of a business. Unlike most other visas, the E-2 is not open to the
entire world, but only available to those nationals of certain countries in
which the U.S. maintains treaties of commerce and navigation. The E-2 visa
provides relatively fast entry into the U.S. by allowing applicants the
opportunity to apply directly with a consulate abroad; no petition to USCIS is
needed. While there is no statutory or regulatory limitation on the number of
times an E-2 visa may be renewed, it does not in and of itself allow for
permanent residency (a “Green Card.”) It may, however, be used in conjunction
with a Direct EB-5 process or perhaps even an EB-1-C provided that those
qualifying criteria are independently met.
The investor (either a real or corporate person) must be a national of a treaty
country and the entity must hold that same nationality. Under the law, a U.S.
entity may qualify as an E-2 enterprise if it is owned by 50% or more by treaty
A list of treaty countries
can be found on the Department
of State’s web site. Unfortunately, no present E-2 treaties exist
between the U.S. and Brazil, Russia, India, or China. However, if an applicant
has dual nationalities, s/he may utilize the E-2 qualifying passport for the
purposes of securing the visa. The U.S. maintains treaties with some countries
that allow the ability to obtain citizenship relatively quickly through their
respective immigrant investor programs, which may present an option for
nationals of countries where no treaty is available.
- Substantial, At-Risk
Investment: An investment must be
substantial enough to ensure the successful operation of the business. Unlike
the EB-5 immigrant visa, there is no per se minimum threshold amount, rather
the investment generally needs to be substantial in a proportional sense to the
startup costs or purchase price of the E-2 enterprise. Accordingly, an investor
seeking to open a café would have a lower minimum investment threshold than an
investor seeking to open a manufacturing plant.
- Real, Active, and Operating Entity: The
E-2 investment must be made in an entity that is already in active business
operations, or will be able to commence operations immediately following
issuance of the visa. Certificates of incorporation, contracts, letters of
intent, a business lease, and similar documentation is generally required for
- Marginality: An investment must generate
an income and employment for more than just the investor. Simply providing a
basic living for the investor and his/her family, as self-employment, will not
qualify. Likewise, noneconomic activity such as the mere purchase of real
estate will not qualify. Unlike the Direct EB-5 visa, job creation is not
quantified nor must job creation be direct hires by the E-2 entity. Startups
generally require a comprehensive business plan.
The E-2 visa does not require an investor
to file a petition with USCIS. Instead, the investor may file an application
directly with a foreign consulate abroad. Each consulate has varying
requirements and processes for application submission, however, the visa is
generally issued in a matter of weeks or months following submission. In person
consular interviews are usually required.
The consulate will issue an E-2 visa with a
duration that varies based on the country of nationality’s reciprocity for U.S.
citizens. Most nationals are able to secure visas valid for a period of five
years, which is the maximum allowable.
It is important to distinguish the
difference between visa validity and authorized stay. Each E-2 entry, regardless of validity time
remaining on the visa, allows for admission and authorized stay of up to
two years. With a valid visa, E-2 visa holders may depart the U.S. and reenter
to secure a new 2-year admission. In other words, even if the visa has not
expired, an E-2 visa holder would need to depart the U.S. and return prior to
expiry of stay. Alternatively, s/he may file for an extension through USCIS.
Once the visa expires and the E-2 holder departs the U.S., a new E-2 submission
is required at a consulate abroad.
Spouses and dependent children of E-2 visa
holders obtain their own E-2 visas. Spouses may apply for work authorization,
allowing them the opportunity to work in the U.S. for any entity. Children do
not qualify for work authorization; however, they may attend public or private
schooling without student visas until the age of 21.
Hiring of Foreign Nationals
Importantly, the E-2 visa can also be used
to hire non-investor nationals to be employed by the E-2 entity. Specifically,
individuals possessing a passport of the E-2 entity may be hired as Managers,
Executives, Supervisory, or Essential Skills employees. Unlike other
nonimmigrant employment visas such as the H-1B, no filings with the U.S. Department
of Labor are required.
Extensions and Permanent Residency
Although intended to be
temporary, there is no numerical limit on the number of E-2 visas that one may
secure. Renewal applications may be made at a consulate abroad, or if no
international travel to be planned, an extension petition filed with USCIS.
The E-2 visa does not
in and of itself provide a path to a Green Card. However, E-2 investments might
be able to qualify or be modified to be able to secure a Direct EB-5 immigrant
visa. An alternative path to permanent residency may exist if the E-2 visa
holder possesses the qualifying experience abroad and there exists a foreign
qualifying entity relevant to securing an EB-1-C immigrant visa.