E-2 Treaty Investor

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification. The treaty investor’s employees may also be eligible for the E-2 Visa. The treaty investor’s spouse and/or children under the age of 21 may accompany him/her under E-2 status.

General Qualifications of a Treaty Investor

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation.
  • 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.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. 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).

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 lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

The investment enterprise may not be marginal. A marginal enterprise is one that does not 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. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.  In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).

General Qualifications of the Employee of a Treaty Investor

To qualify for E-2 classification, 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.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.  See 8 CFR 214.2(e)(3)(ii).

Period of Stay

Qualified treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.  All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E-2 Status

A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.