E2 Visa Guide

The E-2 visa is available to citizens from certain countries that have treaties of commerce and navigation with the United States. It allows them entry into the U.S. based on a substantial investment made in a U.S. business either as the primary investor or as a non-investor employee whose role is either managerial or executive in nature or as an employee possessing special skills essential to the business operations. An employee applicant must share the same nationality as the principal investor(s). The list of eligible countries may be found here.

It is an attractive visa option for several reasons. First, it does not require applicants to seek out an established U.S. employer who is willing to file a petition with USCIS on their behalf. Here, investors may form their own companies in the U.S. and rely on these companies to request a visa directly from the U.S. consulate in their home country, bypassing the need to file a petition with USCIS altogether.

In addition, the E-2 visa may be renewed indefinitely so long as it continues to meet the minimum requirements further discussed below. However, it must be noted that the E-2 visa validity periods vary by country, based on the specific country’s reciprocity with the United States. For more information regarding the lengths of visa validity per country, click this link.

Furthermore, the E-2 visa allows for the spouse of the primary visa holder to work lawfully and for the children (under the age of 21) to attend school in the United States. As of 2021, spouses of E-2 visa holders are considered employment-authorized incident to their status and no longer need to apply for separate work authorization, provided their I-94 record lists them as an 'E-2S' class of admission.
 
While each country that has a treaty of navigation and commerce with the U.S. allows for foreign investment of this type, not all treaties are the same. There are slight variations of the minimum requirements so it is crucial to know the specific requirements of the country in which the application is made. For an application to be approved to allow for issuance of the E-2 visa, the following basic requirements must be established by documentary evidence:

 
NATIONALITY: To be eligible, the principal applicant must be a citizen of the country with which the U.S. has a treaty AND must be in possession of a valid passport from that country for E-2 visa issuance.

NOTE: It is not a requirement that the spouse and/or child(ren) of the principal applicant be citizens of the qualifying country. An E-2 visa may be stamped into a passport of a non-qualifying country for the principal visa holder’s dependent(s).

OWNERSHIP: The U.S. business MUST be at least 50% owned by a citizen of the treaty country.

INVESTMENT: The investor(s) must have invested or be in the process of actively investing at the time the E-2 application is submitted to the consulate for processing. This investment must be determined to be “substantial” and “at risk” to meet this criterion. This term “substantial” is not defined as the amount is determined on a case-by-case basis based on the type and size of the business and the country of origin. To be “at risk,” the capital must be subject to partial or total loss if the investment fails.

MARGINALITY: To be successful, it must be established that the business enterprise is not a marginal investment. This is typically demonstrated through the business’ ability to generate income beyond that needed to provide a living for the treaty investor and family members. To overcome the “marginality” requirement, a concise and comprehensive business plan is typically submitted to support a first-time E-2 application for a new enterprise. Marginality can also be established by the company employing U.S. workers and/or showing that the investor has other means beyond the investment and thereby does not rely exclusively on the U.S. business for financial support.

REAL and OPERATING: The U.S. business must be a real and active company, meaning it must be providing a service or commodity for profit. Passive investments such as stocks and real estate purchases, and non-profit organizations do not meet this requirement.

INTENT TO DEPART: While the E-2 visa is a non-immigrant visa that may renewed indefinitely, the applicant must establish that there is no intent to reside permanently in the United States. If the business ceases to operate, the E-2 visa holder must make plans to immediately depart the U.S.

NOTE: While the E-2 visa is strictly a non-immigrant visa, certain options may be available to E-2 visa holders to apply for permanent residency in the U.S. which include: diversity visa (lottery), employment-based “green card” based on employment (EB2 and EB3) or investment (EB5) or family-based “green card” if related to a U.S. citizen by marriage, birth, parentage or siblings with one or both parents in common or related to a Legal Permanent Resident by marriage or as a unmarried child under the age of 21.

INVESTOR/EMPLOYEE: There are two types of E-2 visas available. The investor visa is issued to an individual with controlling interest in the company to enter the U.S. to personally develop and direct the activities of the enterprise. An E-2 visa may be issued to a non-investor employee, with the same citizenship as the business owner(s), to enter the U.S. in the capacity of an executive, a supervisor or as an individual in possession of “essential skills” relevant to the business.

 
To be successful in the application for E-2 visa issuance, an investor typically follows the following steps:

 
1. BUSINESS PLANNING: Develop a concise and comprehensive business plan. It is recommended that the business plan includes charts of financial projections and staffing levels over a five-year period.

2. INVESTMENT: Make the required substantial investment and show a clear paper trail of the source and transfer of funds from the treaty country to the U.S. business. It is recommended that business premises also be secured before the application is submitted, despite the Foreign Affairs Manual’s post-COVID clause stating that physical office space is not required for visa issuance.

3. DOCUMENTATION: Each consulate has specific instructions on how to apply and what documents must be submitted to establish eligibility for the E-2 visa.

4. APPLICATION SUBMISSION: Each applicant must complete and submit a DS-160 application with the E-2 visa package. Typically, the applicant is invited to schedule a visa interview after a consular officer has reviewed the submission. Processing times vary depending upon the country where the application is submitted, which range from a few weeks to several months.

5. VISA INTERVIEW: The E-2 principal investor or employee applicant must appear at the U.S. consulate the treaty country to be interviewed by consular officer to ensure eligibility for the visa. Dependent family members over the age of 14 must also attend a visa interview. Often, visa interviews are waived for applicants renewing their E-2 visas.

 
A foreign national who is physically present in the United States may be eligible to apply to USCIS to request a change from his/her current status to E-2 status without having to depart the U.S. If approved, the individual may remain in the United States for a two-year period. However, upon departing the U.S., the individual must submit a new application to a U.S. consulate to be issued an E-2 visa to re-enter the U.S. and resume E-2 status. Premium Processing is only available for E-2 petitions filed with USCIS by individuals already in the U.S. seeking a change of status or an extension of status. It is not available for consular E-2 visa applications, which allows for expedited adjudication to be completed within 15 calendar days of USCIS receipt of the petition for an additional fee.
 
The visa itself may be valid for a period of up to five years depending on the applicant’s country of citizenship. Visa validity periods are governed by each country’s treaty with the U.S. and can range from a few months to five years. Check the visa reciprocity schedule for details.
 
However, each time an individual enters the U.S. in E-2 status, the period of stay in the U.S. is for a period of two years. It is critical that an E-2 visa holder checks his/her I-94 record after each entry into the U.S. to ensure the information is correct. The I-94 record may be retrieved by entering the full name, date of birth, country of citizenship and passport number in the following form from the Customs and Border Patrol’s website.
 
If an individual is a citizen from a treaty country and has substantial capital to invest in a U.S. business, the E-2 is a viable visa option that allows the person to live and work in the U.S. for their own company, with the possibility of indefinite renewals as long as they continue to meet the requirements. While the entire application process may seem daunting to prospective applicants, an experienced attorney will be able to guide them through each step from start to finish to submit an application that establishes eligibility for E-2 visa issuance.