With the drastic increase in H1-B visa applicants in recent years and the fixed annual cap of 85,000 visas granted, skilled foreign nationals should consider alternative visas to enhance their chances of attaining legal status and an income in the United States. Foreign nationals with an entrepreneurial mindset should consider petitioning for an E-2 visa. Unlike H-1B visas, there is no quota on the number of E-2 visas granted annually. The requirements, duration, and possible problem causing limitations of an E-2 visa are discussed below.
General Requirements for an E-2 (Treaty Investor) Visa:
- According to INA§101(a)(15)(E)(ii), E-2 Investor Visa petitioners must be a national of a country where a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent exists with the United States.
- For a list of Treaty Countries see: https://travel.state.gov/content/visas/en/fees/treaty.html
- The petitioner must have invested, or be investing, a substantial amount of capital in a bona fide new or existing U.S. business. 8 C.F.R. § 214.2 (e) provides definitions of what constitute an adequate investment, a substantial amount of capital, and a bona fide business for E-2 visa requirements. Abbreviated versions of these definitions are given below.
- Investment—For purposes of an E-2 Visa Petition, USCIS defines investment as:
I. The treaty investor’s placing of capital, including personal funds and assets, at risk in a commercial sense with the objective of generating a profit. This investment must also be irrevocably committed to the business.
- Substantial amount of capital—USCIS deems the capital invested substantial if it is:
I. Substantial in the proportional sense in relationship to the total cost of either purchasing an established business or creating the type of business in consideration. USCIS determines if it is substantial in the proportional sense based on an inverted sliding scale; the lower the total cost of the business, the higher, proportionately, the investment must be to meet the criteria; and
II. sufficient to ensure the treaty investor’s financial commitment to a successful operation of the business
- C. Bona fide
I. The business must be a real and active commercial or entrepreneurial undertaking that produces services and goods for profit or has the future capacity to do so within five years
II. To be bona fide, the investment enterprise cannot be marginal. This means that it must have the present or future capacity to:
- to generate substantially more than enough income to provide a minimal living for the treaty investor and his or her family; or
- Make a significant economic contribution within the U.S.
- The petitioner must also be seeking the E-2 visa solely to develop and direct his or her business.
- In order for a treaty investor to prove that their intentions are to develop and direct the enterprise he or she must have the control or power to do so.
- Requisite power can be established if the treaty investor has at least 50% ownership of the business or possesses operational control of the enterprise through an executive position.
- Lastly, the treaty investor must intend to depart U.S. upon expiration or termination of his or her treaty investor status. That being said, an application for initial admission, change of status, or extension of stay in E-2 classification may not be denied solely on the basis of a filed or approved immigrant visa petition.
General Requirements for the Employee of a Treaty Investor:
Certain employees of a foreign national holding an E-2 (Treaty Investor) visa or a qualifying enterprise may also be eligible for an E-2 Visa. To qualify for an E-2 visa as the employee of an individual treaty trader, a foreign national employee must meet set requirements:
- He or she must be of the same nationality as the Treaty Investor employer
- The employee must be engaged in executive or supervisory duties
- If the employee does not have an executive or supervisory role, he or she must be employed in a capacity that requires specific qualifications. Specific qualifications are defined by USCIS as specialized skills that make the employee essential to the efficient functioning of the enterprise.
Period of Admission:
A treaty investor and treaty employee may be admitted for an initial period of not more than two years. After the initial period, he or she may apply for an extension. Note, however, treaty employees who receive an E-2 visa based on specific qualifications may have a shorter lasting visa and have more difficulty attaining an extension. This is because their specific qualification is predicated on the duration that their specialized skills are essential to the efficient functioning of the enterprise.
Extension of Stay:
Requests for extensions of stay may be granted in increments of not more than two years. A treaty investor in valid E-2 status may apply for an extension of stay by filing an application for extension of stay on Form I-129 and E Supplement. To be eligible for an extension of stay, E-2 status holders must prove that they have at all times maintained the terms and conditions of their E-2 non-immigration classification. E-2 holders must also prove that they were in the U.S. when they filed the application for the extension of stay. Lastly, they must prove that they did not abandon their extension request.
As long as a treaty investor continues to meet the requirements of E-2 classification and does not violate the terms and conditions of the initial E-2 visa, there is no limit on the number of extensions he or she may apply for and receive.
Maintenance of terms and conditions requirement:
When an E-2 petition is initially approved, the enterprise that serves as the foundation for an E-2 visa has certain business characteristics and the beneficiary has a specific role with the enterprise. USCIS not only considers these characteristics and roles, but relies on them, when deciding to grant initial admission. The specific operations/structure of the enterprise and the beneficiary’s role with the enterprise, at the time of the initial approval, serve as integral components of the terms and conditions of the E-2 status.
Thus, a treaty investor or treaty employee may engage only in the employment which is consistent with the terms and conditions of his or her status. Furthermore, the activities and structure of the enterprise should remain consistent with the terms and conditions of the E-2 status. That being said, an E-2 treaty investor or employee can make non-substantive changes. More significantly, they can make substantive changes in the terms or conditions of their E-2 status after filing for and attaining approval from USCIS. Substantive and non-substantive changes are discussed below.
According to 8 C.F.R. 214.2 (e) (8), prior USCIS approval must be obtained where there will be a substantive change in the terms or conditions of an E-2 status. In such cases, a treaty visa holder must file a new application, in accordance with the instructions on the form, requesting extension of stay in the U.S. USCIS will deem there to have been a substantive change, necessitating the filing of a new Form-129 application, in cases where there has been a fundamental change in the employing entity’s basic characteristics (e.g., mergers and acquisitions, sale of the division where the investor or employee is employed, or change in the enterprise’s business structure). In support of his or her Form I-129 application, the E-2 status holder must submit evidence of continued eligibility for E classification in the new capacity.
Prior approval from USCIS is not necessary for non-substantive changes. Changes that do not alter the enterprise’s basic characteristics and/or the previously approved employment relationship for a treaty employee are deemed non-substantive.
Special Case of Subsidiary Employment:
8 C.F.R. 214.2 (e) (8) (ii) states that treaty employees may perform work for the parent treaty enterprise, or any subsidiary of the parent organization. Performing work for subsidiaries of a common parent enterprise will not be deemed to constitute a substantive change in the terms and conditions of the underlying E treaty employment if, at the time the E treaty status was determined, the applicant presented evidence establishing the following elements:
- The enterprise, and any of its subsidiaries where the employee will work; the requisite parent-subsidiary relationship; and that the subsidiary independently qualifies as a treaty organization or enterprise under E-2 qualifications
- In the case of an employee of a treaty investor, the work to be performed for the subsidiary also requires executive, supervisory, or essential skills; and
- The work for the subsidiary is consistent with the terms and conditions of the activity forming the basis of the E-2 classification.
As long as these elements are established, a treaty employee does not need to seek approval from USCIS when working for a subsidiary of the principal parent enterprise.
Consequences of Unauthorized Substantive Changes:
The consequences of making substantive changes to the enterprise or the employment relationship, prior to USCIS approval, are severe. Unauthorized substantive changes equate to changes in the terms and conditions of the E-2 status. Such unauthorized changes result in a failure to maintain status. For treaty employees, an unauthorized change of employment to a new employer will constitute a failure to maintain status. According to 8 C.F.R. 214.1 (c) (4), failure to maintain the previously accorded status bars an applicant from receiving an extension of stay. Unauthorized substantive changes not only bar a person from attaining an extension of stay, but can result in the person being deemed to have unlawful presence in the United States. To avoid all these consequences, an E-2 visa holder must be very careful when making changes without gaining prior approval from USCIS. At times the distinction between substantive and non-substantive changes can be unclear. In those situations, it is very important to seek help from an Immigration lawyer and ask the USCIS for feedback.
Attaining Advice from USCIS:
According to 8 C.F.R 214.2 (e) (8) (v), E-2 visa holders can seek guidance from USCIS to determine whether a planned change is substantive or not. To do so, they must file form I-129, with fee, and a complete description of the change.
An E-2 visa is a viable option for those that have ambitions of being their own boss while having legal status in the United States. As long as they meet the requirements, they do not have to worry about a lottery system to receive E-2 classification. That being said, once a foreign national has attained E-2 status, they must be very careful about making any changes to their enterprise or their role in the enterprise. Unless a change is undoubtedly non-substantive, an E-2 visa holder ought to seek approval or advice from USCIS prior to the change. Failure to do so, could result in serious consequences.
For more detailed information regarding E-2 visas, visit USCIS’ E-2 Treaty Investors webpage.