What is an E-2 Visa?
The E-2 visa, known as a treaty investor visa, is a non-immigrant (temporary) visa for foreign investors. Typically, a E-2 visa is valid for two to five years upon approval. After the initial period granted, the visa can be renewed in increments of two to five years each. As long as the holder maintains an intent to leave after their status expires, there is no limit on the number of extensions that can be requested. If you come from a treaty country and have a significant amount of funds to invest, you may be eligible to apply for an E-2 visa to set up a bona fide enterprise in the U.S, along with your immediate family.
While E-2 visas are most commonly used by individual investors, it can also be used by organizations looking to send qualified employees.
What is an E-2 Visa Treaty Country?
A treaty country is a country that has signed an E-2 treaty with the U.S., also known as a commerce and navigation treaty. Each signed agreement is different, so the amount of time you are permitted to stay in the U.S. may vary on the country. Your period of authorized stay will be determined by your I-94 (Arrival Form) when you enter the country under your E-2. Depending on your country’s terms, your program will lead to citizenship be it through investment, descent, marriage, or other means.
What are the Current E-2 Visa Treaty Countries?
If you are wondering if your country is participating in the E-2 treaty investor visa program, here is a list of countries that have currently ratified that treaty:
- Bosnia & Herzegovina
- Costa Rica
- Czech Republic
- New Zealand
- North Macedonia
- South Korea
- Sri Lanka
- Trinidad & Tobago
- United Kingdom
- (Former) Yugoslavia
Conversely, here are some major countries that are not treaty countries:
- Brazil, China, India, Russia, Nigeria, etc.
What are the Requirements for the E-2 Visa?
While getting a E-2 visa is relatively uncomplicated, qualifying for one is a different story. Here are the main requirements that must be met for this type of visa:
- As an individual investor, you are a national of one of the treaty countries listed above. If you are applying as a company, 50% of your company must be owned by a national of a treaty investment country.
- If you are an executive or supervisor of an organization, you will need to demonstrate ultimate control or responsibility over the enterprise. Your authority, history of senior-level employment, place in the hierarchy, salary, and how much of the enterprise you oversee - among other things - will be evaluated.
- If you are an employee of an organization, you will need to demonstrate that you are essential to the enterprise. Your skill set, function, expertise, and the general availability of workers will be evaluated.
- You must be, at least, in the process of investing a substantial amount of capital in a for-profit U.S. enterprise. As an investor, you should expect to put down at least $100,000 depending on the nature of the enterprise. However, a substantial amount of capital is wholly defined by the combination of the investor’s contributions, financial risks, controls, and the likelihood of success. Specifically, the immigration officer assigned to your case will use a proportionality test to compare how much you actually invested in the enterprise to the total value of the enterprise itself.
- Your business must be bona fide. Your enterprise must be real, active, operational or ready to become operational upon receipt of immigration status, and meet legal requirements. Everything must be set up for a business, such as business licenses, permits, and equipment.
- Your business cannot be a marginal enterprise, meaning it must have the capacity to generate more than enough profit to provide a living for you and your family. Otherwise, your business does not make a significant economic contribution to the country. New businesses are exempt from this requirement but will need to meet it within five years.
- You intend to leave the U.S. once your E-2 status ends. In this situation, a simple statement will fulfill this requirement, even if you may be able to live in the U.S. indefinitely on your E-2. This is also called “demonstrating intent to return.”
- You are ready to move to the U.S. for the sole purpose of actively directing and developing your business. This may be fulfilled by proving that you own at least 50% ownership of the enterprise, etc.
- You have the financial means to invest and you are able to sufficiently prove that you have earned or procured those funds lawfully. Lawful sources of funding can include earnings from lawful employment, income, inheritance, gifts, or personal proceeds from a loan. Loans secured by the E-2 business do not qualify.
What are the Benefits of an E-2 Visa?
- You will be able to work in the U.S. legally - on the business only. Unlike the EB5 investor green card, the E-2 does not specify a quota or dollar amount invested. As long as you qualify, you can be granted this visa.
- Unlike the nature of the EB5 investor green card, you have more control over your investment. EB5 investment is typically passive, where you invest your money in someone else’s enterprise. The E-2 process is a direct investment process where you buy or build your own company.
- Your spouse and your dependent, unmarried child(ren) under 21 can also qualify for an E-2 visa. Additionally, your spouse will be able to apply for work authorization and your children can go to school.
- There is no cap on the number of times you can extend your E-2 visa status, allowing you to stay in the U.S. indefinitely.
- You are able to freely travel outside of the U.S. without having to be concerned with any presence requirements. To avoid being taxed on your worldwide income, you will actually need to be outside of the country for 245 days of the year (see a tax professional for this).
What are the Disadvantages of an E-2 Visa?
- You are required to actively work within your enterprise in the U.S. only.
- When your child(ren) turns 21, they can no longer remain in the U.S. as an E-2 dependent and may need to figure out other paths to maintain status in the U.S.
- There is no direct or clear path to obtaining a green card. This is especially problematic if your intention is to eventually become a U.S. citizen.
- You will need to pay renewal fees.
- An E-2 may not suit your enterprise. For example, import/export businesses may run into issues.
Required Documentation and Fees for E-2 Visa
- If you are operating independently, you will file Form I-129 (“Petition for a Nonimmigrant Worker”). If you are part of a company, your employer will need to file I-129. There is a filing fee of $460.00, which must be paid for each extension. Depending on which country the applicant is coming from, there may be additional fees involved. When you pay your filing fee, keep your payment receipts and include them in your document file.
- If you are filing from overseas, you must file Form DS-160 (“Non-Immigrant Visa Application”). There is a filing fee of $205.00. Depending on which country the applicant is coming from, there may be additional fees involved, such as an $85.00 biometrics service fee. All non-immigrant visa applicants must fill out this form. When you pay your filing fee, keep your payment receipts and include them in your document file.
Submitting the wrong documents or failing to submit the required documents can delay your case or even result in a denial. If you are unsure about what you need to submit, reach out to an immigration lawyer for guidance. Here is a general list of additional documents required for an E-2 visa application:
- A copy of your passport. Your passport must have at least one blank page and be valid for at least six months after your authorized period of stay in the U.S.
- Two passport-style colored photographs of yourself taken in the last six months with a plain, light background. Review the photo requirements before submitting as you may be required to submit a digital photo. You may wear a headdress if mandated by religious order.
- Form DS-156E (“Nonimmigrant Treaty Trader/Investor Application”) if you’re applying from a company.
- Proof that you have intentions to return to your country of residence after your visa ends, such as property deeds or an apartment lease.
- Documents of your established business. These can be business licenses, receipts, shares, titles, registration documents, partnership agreements, copies of employee and client contracts, employment records, signed office lease agreements, organizational charts, business plans, financial statements, tax returns, advertising invoices, etc.
E-2 Visa Process
Obtaining an E-2 visa is a multi-step process with varied requirements. If you fail to properly file your case or fail to complete these steps, your case may be rejected, delayed or even denied. To avoid making costly mistakes, it is highly recommended that you hire an immigration attorney to guide you through each step and closely review the instructions on your U.S. consulate’s website. Here is an outline of the process:
Step 1. E-2 Visa Application
Step 2. Schedule Visa Interview (if Filing from Outside of the U.S.)
Step 3. Prepare Document File (if Filing from Outside of the U.S.)
Step 4. Attend Visa Interview (if Filing from Outside of the U.S.)
Step 1. E-2 Visa Application
If You Are Filing in the U.S.
Provided that you are currently staying in the U.S. legally, you can file Form I-129 (“Petition for a Nonimmigrant Worker”) directly with the United States Citizenship and Immigration Services (USCIS). You will also need to include the required documentation to prove your investment, your intent to return, and your nationality. If you are working alone, you will file I-129 yourself. If you are working for a company, your employer will need to file the petition for you. If USCIS approves your application, you will receive a Form I-797 (“Approval Notice”) in the mail. This process will typically take about five months.
The rest of these steps are only applicable to those filing outside of the United States. You may skip this section and read on to learn about processing times, E-2 denials, and FAQ.
If You Are Filing Outside of the U.S.
If you are living abroad, you will apply for your E-2 through a U.S. consulate or embassy by filing Form DS-160 (“Non-Immigrant Visa Application”) online. When you file DS-160, keep your confirmation page and code as you will need to bring them to your required interview. After submitting your DS-160, you will need to schedule and attend the interview before your application can be considered for approval. This process will typically take 1 to 4 weeks. Make sure to follow the rest of the subsequent steps closely as they apply to your case.
Step 2. Schedule E-2 Visa Interview (if Filing from Outside of the U.S.)
If you are between the ages of 13 and 80, you should schedule an interview with an official at the nearest U.S. embassy or consulate as soon as possible to avoid long wait times. When you schedule your interview, you will receive an appointment letter. Make sure to bring this appointment letter with you to the interview.
Step 3. Prepare Document File (if Filing from Outside of the U.S.)
A document file must be prepared beforehand and brought to the interview, which contains proof of your investment, your intent to return, and your nationality.
Refer to Required Documentation and Fees for E-2 Visa for what you will need to compile. Providing the right and ample amount of evidence can get complicated, and you may need to hire an immigration attorney to help you prepare a strong document file. Don’t forget to include the receipts to prove that you have paid your filing fee.
Step 4. Attending the E-2 Visa Interview (if Filing from Outside of the U.S.)
You will be interviewed by officials at your U.S. consulate or embassy. If your spouse and/or dependent children over the age of 14 are applying with you, they will need to accompany you to this appointment. During the interview, you will be asked about your background, plans, and your intent in visiting the country. You must also prove that you have intentions to return to your home country after your visa has ended. If your interviewers suspect that you want to remain in the U.S. permanently, your application may be rejected. After completing your interview, your petition will be processed. Your application may be even approved on the spot, in which you will be fingerprinted and asked to leave your passport with the consulate or embassy. Note that you will need to pay an additional fee to cover the visa. An official will let you know how you will receive your visa.
E-2 Visa Processing Time
The processing time depends on the specifics of your case. Generally, consular processing takes between 2 to 20 weeks from the time of filing. If you are applying from within the U.S., USCIS, it may take 2 to 10 months, but they may also send a request for additional evidence that will delay the total processing time. Alternatively, you can reduce USCIS’s total processing time by 15 days if you pay an extra fee of about $2,500.00 for Premium Processing.
Denial of Your E-2 Visa Application
An important thing to take note of is that there is a difference between a rejection and a denial. Your petition is likely to be rejected during the earlier stages when an officer is confirming that you have filled out the required information, provided the necessary documentation, and paid the correct fees.
Once your petition has been looked over initially, it will be inspected more thoroughly to confirm whether or not your case merits an E-2 visa. At this stage, your petition can be denied. A denial could happen because your investment was not substantial, or you were not judged to be in a position to run your enterprise. An immigration lawyer will be able to better explain your situation. Additionally, if you are filing from within the U.S., USCIS may issue a Request for Evidence (RFE) for other documents that may help your case.
Avoid delays or denials because they can affect current and future visa applications. The best way to avoid being denied your E-2 visa is to work with an immigration attorney who will file properly and remain diligent throughout the entire application process. If your application is denied (or preferably before a denial takes place) the best course of action is to contact an attorney and strategically determine what needs to be done based on the outcome of your case. Should you choose to refile, you will need to repay the filing fee and redo the petition. It is best to submit your petition correctly the first time.
Appealing an E-2 Visa Denial
In this case, you can either file a motion to reopen or a motion to reconsider. A motion to reopen is appropriate if you would like to request your closed case to be reopened in light of new evidence that may influence the decision. A motion to reconsider is appropriate if you feel that the decision was a mistake on the evaluating officer’s part and you or your attorney will contend the mistake from a legal standpoint. If appealing the denial is your plan of action, you should work with a lawyer to submit your motion.
Alternatively, you can also speak to an attorney about appealing with a third party: the USCIS Administrative Appeals Office.
Frequently Asked Questions
Q. Do I need to live in an E-2 visa treaty country?
A. No. As long as you are a national of a treaty country, you do not need to presently live there. Any workers or family members applying with your E-2 also do not need to be from a treaty country.
Q. Is the E-2 investor visa a dual intent visa?
A. No. However, as long as your visa is valid, you can have the intent to stay in the U.S. and run your enterprise for an indefinite amount of time.
Q. How do I extend my E-2 investor visa?
A. There are two ways to go about extending your visa. The first way is to travel outside of the U.S. and then come back, which will result in an automatic renewal for another 2 years. The second way is to file Form I-129 and include the supporting documents that demonstrate your continued eligibility. For your spouse and child(ren) who have accompanied you in the U.S, you can file Form I-539 to extend their stays.
Q. How do I transition to a green card from the E-2 investor visa?
A. While there is no direct or clear path to obtaining a green card, you can consider routes such as transitioning to an EB-5 green card, applying for an EB-2 National Interest Waiver, or entering a legitimate marriage with a U.S. citizen.
Q. What if there is a substantive change to my E-2 visa status?
A. If there are any fundamental changes to your previously approved relationship with the enterprise (such as an acquisition, merger, or major event), you will need to inform USCIS.