Frequently Asked Questions About E-2 Visa

Q: What is an E-2 Visa?

A: An E-2 Visa is document that allows non-immigrant treaty investors to enter the United States and work in the U.S. for a temporary period of time.

Q: Who is handling my case if I retain Z&A?

A: Our attorneys handle their clients' cases individually by preparing petition letters, contacting clients, and following up on pending cases. That is why we have more attorneys than clerks. Our clerks' main objective is to help attorneys prepare our clients' case packages.  Each client's package will be reviewed by one of our most experienced attorneys for a final check before it is sent out to the USCIS.

Q: How long does an E-2 petition take in the United States?

A: Regular processing currently takes about 12-14 weeks. USCIS offers expedited 15-day Premium Processing for an additional fee of $1,000.

Q: Who is eligible for the Premium Processing program?

A: Beginning June 1, 2001, Premium Processing services are available to those employers who file Form I-129 to classify a beneficiary under one of the following petitions:
E-1, E-2, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3 and Q-1.

Beginning July 30, 2001, USCIS will make Premium Processing service available to employers who wish to file Form I-129 to classify a beneficiary under the following:
H-1B, TN or R nonimmigrant.

There is no Premium Processing service at consular posts outside the United States.

Q: What is the Premium Processing fee?

A: The fee for this service is $1,000. The Premium Processing fee may not be waived. In addition to the Premium Processing fee, all filing fees related to Form I-129 (Petition for Non-immigrant worker) must also be submitted. The Premium Processing fee must be submitted in a separate check or money order.

Q: How do I file a Request for Premium Processing?

A: You should complete and sign Form I-907, Request for Premium Processing service. You should provide a separate check for $1,000. The I-907 form should be sent to the same service center where your I-129 (Petition for Non-immigrant Worker) is either currently pending or will be filed. Be sure to send the forms to the address specifically designated as the Service Center's Express Mail Address.

Q: What does "active investment" mean?

A: The investor is required to make a commitment of funds that represents an actual, active investment. Passive investment doesn't count. For example, an investment in land would not qualify since it would be considered as passive investment. However, if the investment was accompanied by submission of development plans to authorities and contracts for building, it would be active investment. It is acceptable to use an escrow account to protect the investor in the event the visa is denied. However, the investor must present other evidence showing the investment will be active. In addition, the investor cannot just invest the capital and not take part in the actual managing or directing of the business. The investor must manage the business and must exercise a controlling interest in the business.

Q: What does "substantial investment" mean?

A: "Substantial" does not require a particular dollar amount. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise. Currently, the Department of State uses a relative/proportionality test to determine whether the investment is substantial:

(1) It has to be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses); or

(2) It has to be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses).

The amount invested highly depends on the type of the business. An investment of $50,000 to open a consulting company or a law firm might be appropriate if you can demonstrate that the amount is sufficient to operate such an office. On the other hand, an investment of $1 million to open a large manufacturing plant might not be sufficient, since the cost of buying or building a large manufacturing plant probably costs far in excess of $1 million.

Q: What does "at risk" mean?

A: The capital must be subjected to partial or total loss if investment fortunes reverse. It must be "the investor's unsecured personal business capital or capital secured by personal assets". Mortgage debt or a commercially secured loan is not sufficient. Uncommitted funds in a bank account are insufficient. A second mortgage on a home, unsecured or unencumbered loans or assets and loans on the person's personal signature are acceptable. Inheritance of a business is not an investment. The statute does not require that the source of the funds be outside the U.S. Funds can not be obtained directly or indirectly through criminal activity.

Q: What does "marginal" mean?

A: Investment is marginal if it does not have the present or future capacity to generate more than a minimal living for the investor and his or her family. Investment cannot be solely to earn a living for the investor and his family. Factors to determine whether investment is marginal:

(1) Investment will expand job opportunities;
(2) Generate other sources of income;
(3) Investment will generate income substantially above that which would be considered “a    living”;
(4) Investor will not work simply as a skilled or unskilled worker.

Q: Can I change to E-2 status through Visa Waiver Pilot Program?

A: No, if an alien is admitted to the United States through the Visa Waiver Pilot Program, he can not change his non-immigrant status. Therefore, for those who anticipate wanting to change to E-2 status in the United States, we recommend coming through a B-1 or other visa rather than through the VWPP.

Q: What is the definition of “executive and/or supervisor”?

A: (1) The position must be principally and primarily, as opposed to incidentally or collaterally, executive or supervisory.
(2) The position’s duties must provide the employee with ultimate control and responsibility for the enterprise's overall operation, or a major component of it.
(3) To determine the requirements of control and responsibility, the USCIS or Department of State shall consider the following factors:

(a) whether the executive position provides great authority to determine policy and direction;
(b) whether the supervisory position provides supervision for a significant portion of the operation and does not generally involve supervision over low level employees;
(c) whether the applicant possesses executive/supervisory skills and experience;
(d) whether the salary and position title are commensurate with the executive/supervisory position;
(e) the relationship of the position to the organizational structure;
(f) the responsibility of the applicant for making discretionary decisions, setting policies, directing and managing the business operations, and/or supervising other professional and supervisory personnel; and
(g) whether the position requires performance of routine staff work or whether it is only of an incidental nature.

Q: Can a non-supervisory person with special qualifications be an essential employee?

A: Yes. USCIS/Department of State will consider the following factors to determine whether a person is an essential employee:

(a) the employee's degree or proven expertise in an area of operations;
(b) the uniqueness of the specific skills;
(c) the function of the job to which the applicant is committed;
(d) the salary; and
(e) the availability of U.S. workers;
(f) knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement.

Q: Can the treaty investor change employment and work for a new employer during his term of stay?

A: The treaty employee or investor may engage only in employment that is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status. An unauthorized change of employment to a new employer will constitute a failure to maintain status.

For more information on the E-2 category, please click one of the following links:
Description
Requirements
Documents
Duration of E-2 visa, Stay and Extension
Visa Re-issuance
Terms and conditions of an E-2 visa
Family Benefits
U.S. Port of Entry
Change to E-2 classification in the United States
USCIS Processing Time
The timescale for us to prepare for an E-2 application
Attorney fee
Change to Other Non-immigrant Status
Frequently Asked Questions About E-2 Visa

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