General Qualifications for an E-2(Treaty Investor) Visa
To qualify for an E-2 (Treaty Investor) visa, an alien applicant must meet specific requirements:
The alien must be a national of a treaty country (refer to our chart on the General Description of E-1/E-2 pagefor a list of such countries);
The alien must have invested, or be investing, a substantial amount of capital in an enterprise in the U.S.;
The alien must be seeking a U.S. visa solely to develop and direct this investment enterprise. This can be proven by evidencing that the alien owns at least 50% of the enterprise, or that he/she possesses operational control of the enterprise through a managerial position, etc.
The USCIS considers investment to be the placement of capital, by the treaty investor, into an enterprise with the intention to generate profit. Such investment can include funds or other assets.
Significantly, the capital must be subject to loss if the investment fails. Additionally, the treaty investor must provethat the funds were not obtained from criminal activity.
Please note that the USCIS defines a “substantial amount of capital” with consideration to:
The cost of investment compared to the total cost of either purchasing an established enterprise or establishing a new one;
Whether the investment is large enough to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
Whether the investment is large enough to make it likely that the treaty investor will successfully develop and direct the enterprise. Notably, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
Finally, the investment enterprise CANNOT be marginal. In other words, the investment enterprise must possess the present or future potential to generate more than enough profit to provide for the living expenses of the treaty investor and his/her family. Notably, a new enterprise can still qualify even if it does not currently meet this requirement. However, in such cases, the enterprise must prove this capacity within five years of the granting of the E-2 Treaty Investor Visa.
General Qualifications for the Employee of a Treaty Trader
Notably, certain employees of (1) an alien holding an E-2 (Treaty Investor) visa or (2) a qualifying enterprise or organization may also be eligible for an E-2 visa.
To qualify for an E-2 visa as the employee of an individual treaty trader, an alien must meet set specifications:
The alien must be of the same nationality as the alien employer (thus, both being of the nationality of the treaty country);
The alien must meet the legal definition of an “employee”;
The alien must be engaged in executive or supervisory duties, or, if the alien does not meet that requirement, they 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 functioning of the trade. As such, these skill can vary, but often include:
An alien can also qualify for an E-2 visa as the employee of a qualifying enterprise or organization. To qualify as such, the organization or enterprise must be at least 50% owned by persons who are in the U.S. and of the nationality of the treaty country. Furthermore, those owners must maintain current nonimmigrant treaty investor status or, if they are outside of the U.S., they must be classifiable as such. To qualify for an E-2 visa as the employee of a qualifying organization or enterprise, the alien must meet the same qualifications detailed above.
Family Members of E-2 Visa Holders
Certain family members of treaty traders and employees may also accompany the E-2 visa holder as dependents. Specifically, an E-2 visa holder may be accompanied or followed by his/her spouse and unmarried children who are under 21 years of age. The nationalities of the dependents do not need to be the same as that of the treaty trader or employee.
(Updated 10/4/2012 by AG)
For more information on the E-1, E-2 category, please click one of the following links: