E-2 Visa for Treaty Investors

The E-2 visa permits entrepreneurs from specific countries, including Bangladesh, to work in the United States for a business in which they have made an investment. Do not mistake E-2 treaty investor visas for EB-5 green cards obtained through investment. EB-5 mandates a minimum investment of 1 million dollars or more, while an E-2 visa does not have a specified minimum investment amount.

E-2 Visa Key Features

Let’s explore the advantages, disadvantages, and concerns related to the E-2 visa:

1. Treaty investors and their workers can lawfully work in the U.S. for a U.S. business if the investor has made a significant cash investment and their home country has a treaty with the U.S.
2. While in the U.S., the treaty investor or employee can only work for the company or self-owned business that sponsored their E-2 visa.
3. Initial visas can be valid for up to five years, contingent on your country of origin, and can be extended indefinitely. The duration of the visa is determined by the visa reciprocity agreement between the U.S. and the other country, as well as the feasibility of the enterprise. (New corporations are granted shorter validity periods.)
4. E visa holders (workers or family members) are granted a maximum stay of two years each time they enter the U.S. They may also choose to prolong their visit while staying in the United States.
5. Visas are offered for a spouse and minor, unmarried children who are accompanying the applicant.
6. Only the spouse, not the children, can apply for a work permit upon arrival in the U.S.

The E-2 visa is often considered a favorable alternative to U.S. permanent residence as it can be acquired through self-employment and allows for an indefinite number of extensions. There are no restrictions on the annual issuance of E-2 visas for eligible applicants.

E-2 Treaty Investor Visa Qualification Criteria

There are six prerequisites for obtaining an E-2 visa:

1. The applicant must be a citizen of a country that has a pertinent treaty with the United States.
2. The applicant must intend to work in the U.S. for a company that they either own or that is owned by other nationals of their country of origin, with a minimum ownership stake of 50%.
3. The applicant must be the owner or a key employee (executive, supervisor, or someone with essential abilities) of the U.S. business.
4. Either the applicant or the corporation must have made a significant financial commitment to the U.S. business. There is no specified legal minimum, but the applicant or firm must be investing capital or assets, aiming to generate a profit, and the investment must be significant in relation to the business type.
5. The U.S. company must be actively involved in commercial operations and comply with the relevant legal regulations to conduct business in its state or region. It cannot solely serve as a tool to assist the investor. The primary objective of the treaty investor visa is to generate employment opportunities for American workers.
6. The applicant is expected to depart the U.S. after their business activities in the country are finished, without the necessity of having a domicile in another country. The applicant will probably need to provide the U.S. consulate with proof of future intentions to depart from the United States.

How to sponsor a foreign worker already in the U.S. for an E-2 visa

Obtaining a new status for a potential E-2 worker in the U.S. involves a distinct application process compared to applying for an admission visa.

The E-2 visa allows a U.S. business, which has received significant investment and is at least 50% owned by citizens of a country with a treaty with the U.S., to hire workers from that same country for executive, supervisory, and essential-skills positions on a temporary basis. The primary investor in a business might utilize this visa category to obtain temporary U.S. residency. An individual who is the primary investor and is located in the United States must have E-2 status to hire E-2 employees. After confirming that the business and potential employee match the E-2 eligibility criteria, the employer must then decide on the location and method for applying.

Submitting a Nonimmigrant Worker Petition to USCIS

An employer can submit a petition to USCIS to modify the status and prolong the stay of a potential employee in the U.S. under a different nonimmigrant category.

The form utilized for this purpose is USCIS’s Petition for a Nonimmigrant Worker, Form I-129. The form includes multiple pages for general information needed for all nonimmigrant worker petitions, as well as supplementary pages tailored to specific visa categories. The E supplement, located after the general part, mandates the employer to outline the E-2 eligibility criteria for both the firm and potential employee.

USCIS provides instructions for Form I-129, which covers many nonimmigrant worker petitions, resulting in potentially vague instructions for specific petition types. The employer can provide these documentation to demonstrate that the business fulfills the E-2 requirements:

1. Bank records, financial statements, loans, savings, and promissory notes can demonstrate proof of ownership and management of investment funds.
2. Proof of sending money to the U.S.: bank drafts, transfers, exchange permits, receipts.
3. Evidence of business establishment in the U.S. includes articles of incorporation, partnership agreements, organization and staffing charts, shares, titles, contracts, receipts, licenses, and leases.
4. Passports can provide proof of investors’ nationality, the parent company’s articles of incorporation, and stock exchange listings.
5. Proof of investment in the U.S. includes titles, receipts, contracts, loans, and bank statements.
6. Proof of the investment’s size: financial accounts, audits, business tax filings.
7. Evidence proving the enterprise is not marginal includes payroll records, payroll tax forms, personal tax filings, or other documentation of personal income and assets.
8. Proof of the enterprise’s legitimacy as an operational business can be found in yearly reports, catalogs, sales brochures, and news articles.

Form instructions can offer only broad advice. No comprehensive list of supporting documentation can encompass all categories of E-2 qualifying enterprises. The documentation a firm presents vary according to its type. A publicly-traded firm can demonstrate foreign ownership through a stock exchange listing, but a closely held corporation usually provides stock certificates and owners’ passport identification pages.

A sole owner might demonstrate that the business is not marginal by providing personal income tax returns that show it generates sufficient money to support the investor’s family. Simultaneously, a larger corporation would provide evidence like payroll records to demonstrate its economic activity through employee hiring.

Aside from the company paperwork, documentation must be provided to show that the potential employee fits the E-2 criteria and is eligible for a change in status.

1. Proof of nationality: Passport identification pages
2. Evidence of present nonimmigrant status: I-94 card (see to the following section on maintaining status for an explanation of the I-94 card)
3. Evidence of qualifications includes resumes, diplomas, and appropriate certificates.

An effective cover letter for the E-2 petition packet is essential to help the USCIS adjudicator understand the documents and how they meet the E-2 standards.

Fee Schedule and Office Addresses

The USCIS petition fee amounts to $460. Payment is often made by a check or money order payable to the U.S. Department of Homeland Security and included with the petition. (A credit card is only accepted for payments made to a USCIS lockbox, while the I-129 form is sent to a standard USCIS service facility.)

Reasons to Consider Consular Processing, Even for Workers in the U.S.

USCIS typically grants E-2 status for an initial term of two years. If the prospective E-2 hire contemplates travel outside the U.S. during the first two years of employment, consular processing might make the most sense, even when a USCIS petition is possible.

This is because the employee will need to get a visa at a consular post to re-enter the U.S., and, unlike other types of nonimmigrant petitions, the E-2 petition has no force at all at a consular post. Whereas, say, an H-1B employee needs only present an approved unexpired USCIS petition at a consulate abroad to support the basic visa application form, an E-2 employee will need to make a completely new visa application with all the required supporting documents: So why not just go for a visa from the outset?

How to Maintain E-2 Status in the U.S.

Upon approving an E-2 petition, USCIS issues an approval notice to the employer that includes a status document. The notice is perforated so that one can tear off the bottom portion, the I-94 card, and give it to the employee to serve as evidence of status. The employer and employee must track the expiration date on the I-94. Typically, E-2 status is granted for an initial two-year term.

Before the I-94 expires, the employer can extend your employee’s status by filing a second petition with USCIS. Theoretically, E-2 status can be extended indefinitely by the filing of a petition every two years. However, USCIS does require persuading each time anew, and employers are frequently asked to present some evidence that U.S. workers are not available for the job in question.

An employee who has processed abroad for an E-2 visa will usually be admitted with two years of stay on entering the United States. Since the visa itself is typically issued for a five-year term, the visa-holding employee will have an alternative to a USCIS petition for extending status, namely traveling and re-entering.

With each reentry during the life of the visa, the immigration officer at the point of entry should grant a new two-year period of stay. Thus, through strategic traveling, an E-2 visa holder could parlay a five-year visa into a seven-year stay without reestablishing the E-2 qualifications.