The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. For a list of Treaty Countries, click here.
Requirements: Treaty Investor
The investor, either a real or corporate person, must be a national of a treaty country.
The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States.
The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
1. A treaty must exist between the United States and the foreign country under whose treaty the E status is sought;
The following countries have investment treaties with the United States which allow for conferral of E (treaty-investor status) to the nationals of said country:
Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, South Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia (the former Yugoslav Republic of FRY), Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Yugoslavia
2. Majority ownership or control of the investing or trading company must be held by nationals of the foreign country under whose treaty the E status is sought;
The nationality of the company engaging in trade or investment is the nationality of those persons who own at least 50% of the stock of the corporation. The nationality of the persons owning the corporate stock is their country of citizenship. Note, however, that foreign nationals (who are nationals of the treaty country) who are also U.S. permanent residents cannot be counted towards determining at least 50% ownership.
3. Foreign country citizenship of the country under whose treaty the status is sought must be held by each employee or principal of the company who is seeking the E status pursuant to the treaty.
The rule is that the principal investor or trader and the employees of the treaty enterprise must have the same nationality as the treaty enterprise. The nationality of an individual treaty investor is determined by the authorities of the foreign state of which the alien is a national. In the case of an enterprise or organization, ownership must be traced as best as is practicable to the individuals who are ultimately its owners.
Note, however, that while the primary treaty alien and employee treaty alien must be nationals of the treaty country through which the company/enterprise qualifies, the spouses and/or children of the alien(s) can be any nationality. So long as the qualifying alien is eligible for E status, his or her spouse and children will be granted status under the same treaty.
ADDITIONAL REQUIREMENTS FOR THE E-2 VISA
In addition to the three general rules listed above, which apply to both E-1 and E-2 holders, the following special requirements apply to E-2 holders:
Active Investment: A qualifying investment must be "active," that is, the business enterprise must represent a real operating enterprise productive of some service or commodity. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment. Moreover, this investment must be irrevocable. Substantial investment: The investment must be substantial, taking into consideration only those financial transactions in which the investor's own resources are placed "at risk" . There is no minimum dollar amount necessary in order for the investment to be considered substantial. However, in order for an investment to be considered substantial by the USCIS, it must meet one of two tests:
(1) It has to be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses); or
(2) It has to be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses).
Also, under USCIS guidelines, the larger the total value of the enterprise or the cost to start up the enterprise, the smaller the percentage of the total investment the investor must put up to meet the substantiality requirement. Of course, a million dollar investment by a large foreign company will probably be viewed as being substantial regardless of its proportion to the total value of the enterprise.
Creation of jobs: The investment cannot be "marginal" in nature, that is, one which will only support the investor and his or her family; in most cases it should create job opportunities for U.S. workers.
Essential Role in Enterprise: The person for whom treaty investor status is sought must fill a key role with the company, either as the investor who will develop and direct the investment or as a qualified employee necessary for the development of the investment.
Duration of an E Visa Stay and Extension
The length of the time on an E visa is determined by the time granted by the alien's country of nationality. This time period is published in the Department of State’s reciprocity schedule. The maximum time is usually 5 years. The spouse and children of the principal applicant will also receive E visas for the same period of time. An E-2 visa holder, when entering the United States, will initially be given a two year period of stay.
