Visa E-2 requirements

If you want to know the exact requirements that you must met in order to apply for the E-2 visa, you are in the right place. In this blog you will learn everything you should know about this nonimmigrant visa for the United States.

This article will explain in detail everything about the E-2 visa, requirements, process and everything that concerns to obtaining it. Our New Jersey immigration lawyers have over 10 years of experience in the US immigration law. We have helped hundreds of foreign nationals obtain a visa or permanent residence. 

Contact us today by phone or email and book an appointment with us today at one of our offices located in Newark or Ridgewood, New Jersey.

What Is A US E-2 Visa And What Do I Need To Know In 2023

An E-2 treaty investor classification is a nonimmigrant visa that allows a national of a treaty country to be admitted to the United States when they invest a substantial amount of capital in a US enterprise.

Certain employees of investors or a qualifying organization may also be eligible for this classification. 

A treaty country is one that maintains a treaty of commerce and navigation with the United States, or which has been deemed a qualifying country by legislation.

What Are The Requirements To Apply For The E-2 Visa in 2023?

The requirements to qualify for the E-2 visa depend on whether you are a treaty investor or an employee of the investor.

For investors: 

• Being a national of a country that maintains a treaty of trade and navigation with the United States.
• Seeking to enter the US for the sole purpose of developing and directing the investment enterprise. You must also demonstrate that you own at least 50% of the enterprise or operational control of the enterprise through a managerial position or other corporate device. 
• Have made an investment or are actively in the process of investing a substantial amount of capital in a bona fide US enterprise.

For investor employees:

• Have the same nationality as your main alien employer (must be a national of the treaty country).
• Meet the definition of “employee” under relevant legislation.
• Participate in functions of an executive or supervisory nature. In case of being employed in a lesser capacity, you must have special qualifications.

If your alien primary employer is not an individual, it must be an organization or enterprise that is at least 50% owned by persons who are in the US and are nationals of the treaty country. In addition, owners must possess one of the following conditions:

1. Maintain nonimmigrant treaty investor status, or
2. If they are not in the US, they must be admissible and qualify as nonimmigrant treaty investors.

Terminology For Treaty Investors

To better understand the E-2 visa requirements there are certain terms you should be familiar with. For an investor to obtain the E-2 visa, the US government considers as:

Substantial amount of capital:

• If it is substantial in relation to the total cost of buying an existing enterprise or establishing a new enterprise.
• It is sufficient to guarantee the financial commitment of the treaty investor to the operational success of the enterprise.
• It has a magnitude that supports the probability that the investor will successfully develop and manage the enterprise. The lower the cost of the company, the greater the investment considered as substantial.

Bona fide enterprise: Refers to real, active, and operational commercial or entrepreneurial companies. In addition, they must produce services or goods for profit and meet the legal requirements to do business in their jurisdiction.

Investment: It is the placement of capital by the treaty trader, where funds and other assets are included with the aim of generating a profit. The investor must demonstrate that the funds are subject to partial or total loss if the investment fails and have not been obtained directly or indirectly from criminal activities.

Terminology For Investor Employees

In order for an employee of the investor to obtain the E-2 visa, the US government considers as:

Executive or Supervisory Duties: Duties that provide the employee with control and responsibility for the overall operation of the organization, or a major component of it.

Special Qualifications: These are skills and/or abilities that make the employee’s services considered essential to the operational success of the treaty enterprise. Includes, but is not limited to:

• The degree of proven experience in the operational area of ​​the employee.
• Whether others possess the employee’s specific skills.
• The salary that special qualifications demand.
• Whether the skills and qualifications are available in the US.

Knowledge of a foreign language and/or culture does not, by itself, meet these requirements, as in some cases an essential skill may become commonplace, and therefore no longer qualify at a later date.

How Much Money Do I Need For An E-2 Visa?

The amount of capital that the investor must invest to be eligible for the E-2 visa is substantial. The law does not establish a minimum amount for this, but generally the minimum investment must be around $100,000 in the US enterprise. 

How To Apply For The E-2 Visa?

The E-2 visa application process depends on whether you are inside the US or abroad: 

1. Application within the US 

If you are a treaty investor in the US in lawful nonimmigrant status, you may file Form I-12 , Petition for Nonimmigrant Worker to request a change of status to E-2 classification. 

If you are an employee, your eligible employer must file Form I-129 on your behalf.

2. Application outside the US

You cannot apply for E-2 classification with Form I-129 if you are physically outside the United States. In order to apply, you must follow these steps:

1. Fill out Form DS-160 online.
2. While completing the DS-160 form, you must submit a photo that meets the requirements.
3. Pay the visa application fee.
4. Schedule the interview with the US embassy.
5. Gather all the necessary documents for the interview.
6. Attend the interview on the scheduled date.

Documents Required For The E-2 Visa Application

• Passport. It must be currently valid for travel to the US with a validity of at least 6 months beyond your period of stay.
• Confirmation page. It must be from the DS-160 form and be printed.
• Receipt of payment of the application fee. It must be paid before the interview with the embassy.
• Photo. The photograph must be printed, following the requirements of the photograph. 
• Treaty trader/investor application. It must be Form DS-156E, required if you are an executive, manager, or essential employee.

How Long Does The E-2 Visa Last?

The initial period of stay for the E-2 visa is a maximum of two years. However, it is possible to extend the term of stay in increments of up to two years. Although there is no limit to the number of extensions that can be granted to E-2 status, you must maintain the intent to leave the US when your status expires or is terminated.

Generally, Customs and Border Protection (CBP) grants an automatic readmission period of two years to E-2 immigrants who travel abroad once they return to the United States. This as long as they are qualified as admissible by a CBP officer. 

What Countries Can Get An E-2 Visa?

Foreign nationals of the following countries may be eligible to apply for the E-2 Treaty Investor visa:

• Albania.
• Argentina.
• Armenia.
• Australia.
• Austria.
• Azerbaijan.
• Bahrain.
• Bangladeshi.
• Belgium.
• Bolivia.
• Bosnia and Herzegovina.
• Bulgaria.
• Cameroon.
• Canada.
• Chili.
• China (Taiwan).
• Colombia.
• Congo (Brazzaville and Kinshasa)
• Costa Rica.
• Croatia.
• Czech Republic.
• Denmark.
• Ecuador.
• Egypt.
• Estonia.
• Ethiopia.
• Finland.
• France.
• Georgia.
• Germany.
• Grenade.
• Honduras.
• Ireland.
• Israel.
• Italy.
• Jamaica.
• Japan.
• Jordan.
• Kazakhstan.
• South Korea.
• Kosovo.
• Kyrgyzstan.
• Latvia.
• Liberia.
• Lithuania.
• Luxembourg.
• Macedonia.
• Mexico.
• Moldova.
• Mongolia.
• Montenegro.
• Morocco.
• Netherlands.
• New Zealand.
• Norway.
• Oman.
• Pakistan.
• Panama.
• Paraguay.
• Philippines.
• Poland.
• Romania.
• Senegal.
• Serbia.
• Singapore.
• Slovak Republic.
• Slovenia.
• Spain.
• Sri Lanka.
• Suriname.
• Sweden.
• Switzerland.
• Thailand.
• Togo.
• Trinidad & Tobago.
• Tunisia.
• Turkey.
• Ukraine.
• United Kingdom.
• Yugoslavia.

For more information, visit the Department of State ‘s list of treaty countries.

Terms And Conditions To Get The E-2 Visa

Treaty investors or employees of investors may only work in the activity for which they were approved at the time the E-2 visa is granted. However, they may also work for a parent company of the treaty organization or one of its subsidiaries. 

Marginal enterprises

A marginal enterprise is one that does not have the current or future capacity to generate enough income to provide a minimal living for the treaty investor and their family. Depending on certain circumstances, a new enterprise might not be considered marginal, even if it does not have the current ability to generate revenue.

In such cases, the enterprise must have the ability to generate income within 5 years from the date the treaty investor’s E-2 classification begins.

Can I Bring My Relatives With The E-2 Visa?

Treaty investors and their employees may be accompanied or followed by their spouses and unmarried children under 21 years of age. Their nationality doesn’t have to be the same as that of the treaty investor or their employee.

Spouses and children may apply for E-2 nonimmigrant classification as dependents, and if approved, will generally be granted the same period of stay as the employee or investor.

If family members are in the US and are seeking a change of status or an extension of stay, they can file Form I-539, Application for Extension or Change of Nonimmigrant Status, with USCIS.

Can My Relatives Work With An E-2 Visa?

Spouses of workers with valid E-2 or E2-S status are authorized to work, with the exception of spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (CNMI E-2 investors). These spouses have to apply for employment authorization.

The US Department of Homeland Security (DHS) issues as evidence of employment authorization to complete Form I-9, Employment Eligibility Verification, the following:

• Form I-94, current arrival/departure record with a notation showing E-2S nonimmigrant status.
• A current I-94 form with an annotation reflecting E-2 status along with a USCIS notification of the new admission code.
• A current Employment Authorization Document (EAD). Spouses with status-dependent employment authorization are not required to apply for an EAD using Form I-765, Application for Employment Authorization, but may file one if they wish. If submitted, the EAD will serve as evidence of identity and acceptable employment authorization.
• An expired EAD with additional documentation to show that the EAD has been automatically extended.

Automatic Extension Of The EAD

Certain “E” spouses qualify for an automatic extension of their existing EAD, provided they meet the following:

• They file the renewal application for Form I-765 based on the same status.
• They have a current I-94 form showing E-2 or E-2S status.

The automatic EAD extension will continue until the first occurs:

• Expiration date of the dependent spouse’s Form I-94 reflecting valid E-2 or E-2S status.
• Date the prior EAD renewal request is approved or denied.
• 180 days from the date indicated on the Card Expires in the EAD.

Eligible spouses may submit the following to employers as evidence of the automatic extension of the EAD for Form I-9:

• Form I-94 showing current E-2 or E2S status.
• Form I-797C on the filed EAD renewal application showing category A17 as “selected class”.
• Expired EAD under the same category A17.

Can Family Members Of E-2 Holders Travel Abroad?

Eligible accompanying family members of E-2 treaty investors and their employees receive multiple-entry visas valid for up to 2 years and with an unlimited number of 2-year possible extensions. 

If the E-2 visa holder travels abroad, a two-year extension is usually automatically granted upon return to the country. However, this does not apply to their dependents, for this, they must request two-year extensions in a timely manner.

One exception is when family members are accompanying the E-2 treaty investor or employee at the time the employee or investor applies for readmission to the US.

Although there are no maximum limits to the extensions an E-2 nonimmigrant can be granted, they must have the intent to leave the US once their status ends or expires.

Can I Get The Green Card Through The E-2 Visa?

Being a nonimmigrant visa, it is not possible to obtain the Green Card directly through E-2 status even if you meet all requirements. This visa prohibits the holder from intending to travel to the United States for the purpose of applying for residency. Therefore, it will not be possible to adjust the status, and even less obtain US citizenship later.  

However, you may be eligible to become a lawful permanent resident through other indirect paths, as long as you do not violate your E-2 status.

Unlike the H-1B visa, the Department of State (DOS) does not have a fee for this visa, so it costs less than the EB-5 Investor Green Card.

What Is The Difference Between The E-2 And An EB-5 Visa?

The main difference between the E-2 and the EB-5 visa is that the EB-5 visa gives the right to obtain a Green Card. Additionally, the E-2 and EB-5 visa are way different in the amount of investment and its requirements.

What Are The Benefits Of The E-2 Visa?

• You can legally work in the US for the US enterprise you invested in.
• You can stay for a long time with unlimited extensions, as long as you keep your E-2 status valid (as long as the enterprise remains in operation).
• In general, E-2 visas tend to be approved in a faster time than other visas. In addition, they are not subject to annual fees or limits.
• Your spouse may seek employment through employment authorization.
• You can buy real estate in the US.

If you are looking for a property to buy, our immigration attorney is also a certified NJ real estate attorney able to help you with this matter.

How Can Curbelo Law Help You?

The Curbelo Law firm has successfully represented hundreds of clients helping them to obtain the E-2 visa. Our extensive experience in these immigration cases can help you. 

You’re just one step away from getting a private, personalized consultation for your case. To do this, you simply have to contact us and we will start the process of studying your case to determine if this visa is the most suitable for you.

We will be with you from the beginning to the end. Call us today so we can check if you meet the visa E-2 current requirements for the United States.