The E-2 Treaty Investor Nonimmigrant Visa
An E-2 Nonimmigrant is defined as: A foreign national entitled to enter the United States as a nonimmigrant under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign country of which he/she is a national; The foreign national must be coming to the United States solely to develop and direct the operations of an enterprise in which he/she has invested, or of an enterprise in which he/she is actively in the process of investing a substantial amount of capital; and Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status
E-2 Eligibility Requirements Overview
A Treaty of Freedom, Commerce and Navigation or Bilateral Investment Treaty or other arrangements such as NAFTA must exist between the United States and the country of the investor’s nationality.
The investor must possess the nationality of the treaty country. A treaty investor may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status.
The E-2 visa is a nonimmigrant visa and will not lead to the investor obtaining a “green card” except in situations where an EB-1/FORM I-140 can be filed. However, there is no limit on the length of time an investor may remain in E-2 status as long as the investment is active and on-going and the treaty remains in force. Note: the investor must maintain an unequivocal intent to depart the US upon the termination of her or his status or the investment.
The investment (or business) must be at least 50 percent owned by the investor. As discussed below, a business that is at least 50 percent owned by the national(s) of the relevant treaty country will be eligible for E status, if certain other requirements are met.
The investor must have the ability develop and direct the business. The ability to develop and direct the business can be established by owning at least 50 percent of the interest or shares of the business; and the investor must have full and complete authority, power and discretion to manage and control the business, affairs and property of the company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the company’s business.
The investor must have possession and control of the funds invested and the investment cannot be based on a third party investing. The investor must have received the funds by legitimate means (i.e., savings, gift, inheritance or legal contest) and have control and possession over the funds.
The investment must be placed at risk by the investor placing capital, (including funds and other assets) at risk in the commercial sense, with the objective of generating a profit. The investment capital must be subject to partial or total loss if investment fortunes reverse. The investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Indebtedness secured by the assets of the business is not a qualifying investment. Unsecured loans or loans secured solely by the investors own personal assets are considered a qualifying investment. Capital that is in the process of being invested must be irrevocably committed to the enterprise.
The investment enterprise or business must be a bona fide commercial undertaking. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.
The investment must be substantial. The US Citizenship and Immigration Services (USCIS) or US Consulate will look to the amount invested weighed against the total value of the enterprise, or established enterprises, or the amount normally considered necessary to establish a viable enterprise for new businesses.
The investment must not be marginal. The investment cannot be solely to earn a living for the investor or the investor’s immediate family. It must expand job opportunities, generate other sources of income and must generate an income substantially above what would be considered a living, and the investor will not work simply as a skilled or unskilled worker.
The value of goods or equipment transferred to the US may be counted as part of the investment if those goods or equipment will be put to use in the enterprise. Payments for the lease or rent of the property, facility or equipment may be calculated toward the investment but are limited to only one month. The amount spent for the purchase of equipment and for inventory already in the possession of the investor may be counted as part of the qualifying investment.
Either the historical cost or market value of an existing asset may be counted as part of the investment.
E-2 Treaty Investor Countries
Bosnia and Herzegovina 11
China (Taiwan) 1
Czech Republic 2
Slovak Republic 2
Trinidad & Tobago
United Kingdom 10
Country Specific Footnotes
- China (Taiwan) - Pursuant to Section 6 of the Taiwan Relations Act, (TRA) Public Law 96-8, 93 Stat, 14, and Executive Order 12143, 44 F.R. 37191, this agreement which was concluded with the Taiwan authorities prior to January 01, 1979, is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan.
- Czech Repubilc and Slovak Republic - The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992; entered into force for the Czech Republic and Slovak Republic as separate states on January 01, 1993.
- Denmark - The Treaty which entered into force on July 30, 1961, does not apply to Greenland.
- France - The Treaty which entered into force on December 21, 1960, applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion.
- Japan - The Treaty which entered into force on October 30, 1953, was made applicable to the Bonin Islands on June 26, 1968, and to the Ryukyu Islands on May 15, 1972.
- Netherlands - The Treaty which entered into force on December 05, 1957, is applicable to Aruba and Netherlands Antilles.
- Norway - The Treaty which entered into force on September 13, 1932, does not apply to Svalbard (Spitzbergen and certain lesser islands).
- Spain - The Treaty which entered into force on April 14, 1903, is applicable to all territories.
- Suriname - The Treaty with the Netherlands which entered into force December 05, 1957, was made applicable to Suriname on February 10, 1963.
- United Kingdom - The Convention which entered into force on July 03, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands and Gibraltar) and to "inhabitants" of such territory. This term, as used in the Convention, means "one who resides actually and permanently in a given place, and has his domicile there." Also, in order to qualify for treaty trader or treaty investor status under this treaty, the alien must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty.
- Yugoslavia - The U.S. view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY - Bosnia and Herzegovina, Croatia, the Republic of Macedonia, Slovenia, Montenegro, Serbia, and Kosovo a continue to be bound by the treaty in force with the SFRY and the time of dissolution.
- The E-3 visa is for nationals of the Commonwealth of Australia who wish to enter the United States to perform services in a "specialty occupation." The term "specialty occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The definition is the same as the Immigration and Nationality Act definition of an H-1B specialty occupation.
- Bolivia - Bolivian nationals with qualifying investments in place in the United States by June 10, 2012 continue to be entitled to E-2 classification until June 10, 2022. The only nationals of Bolivia (other than those qualifying for derivative status based on a familial relationship to an E-2 principal alien) who may qualify for E-2 visas at this time are those applicants who are coming to the United States to engage in E-2 activity in furtherance of covered investments established or acquired prior to June 10, 2012.
- Ecuadorian nationals with qualifying investments in place in the United States by May 18, 2018 continue to be entitled to E-2 classification until May 18, 2028. The only nationals of Ecuador (other than those qualifying for derivative status based on a familial relationship to an E-2 principal alien) who may qualify for E-2 visas at this time are those applicants who are coming to the United States to engage in E-2 activity in furtherance of covered investments established or acquired prior to May 18, 2018.