E-2 Treaty Investor / Essential Employee
E-2 Visas for Treaty Investors & Employees
If you are a national of a treaty country, to qualify for the E-2 Treaty visa as the Investor, you must:
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
- Be 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.
Nationals of certain countries are eligible to obtain these visas. For a list of the countries, click Here.
The investment must be at risk – in other words, the capital must be subject to partial or total loss if the investment fails.
The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12)
What is substantial? A substantial amount of capital is:
- Substantial in relationship 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 investment enterprise may not be marginal. In other words, it should have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
The E-2 Essential Employee
The E-2 is not only for the investor. Often, a Treaty Investment business will need the services of an essential employee, to help establish the business here in the US.
The employee of a treaty investor must:
- Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
- Meet the definition of “employee” under relevant law
- Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
One of the critical issues in this type of visa application will be demonstrating that the essential employee’s duties are of an executive or supervisory character, The regulations provide that these are duties which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it. See 8 CFR 214.2(e)(17).
Alternatively, the essential employee must demonstrate that they have “special qualifications.” These are are skills which make the employee’s services essential to the efficient operation of the business. The USCIS will look to things such as:
- 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.
- Knowledge of a foreign language and culture does not, by itself, meet this requirement.
As you can see, a successful E-2 application is highly fact dependent. Contact our office – we have extensive experience with E-2 visas. The E-2 status is usually granted in 2 year increments and can be extended indefinitely, so long as the investment vehicle remains viable and active in the US. E-2 spouses are eligible to apply for employment authorization. E-2 spouses and unmarried children under 21 can attend school.