Law Office of Irwin M. Avelino

E2 Visa for Treaty Investors – Purchasing or Starting Your Own Business in the US

e2-visa-treaty-investorThe Treaty Investor E2 Visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation who is coming to the U.S. to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act.

Example of an E2 Visa Scenario

Because the laws and procedures relating to an E2 Visa for Treaty Investors are so complex, I think it may be very helpful to you if I illustrate the process by way of a an example.

Disclaimer. The following is intended only to give you a general idea of the topic.  It is NOT intended to be legal advice. Everyone’s goals and situations are unique. Please consult an attorney to determine which method is best for your specific goals.

Joseph entered the U.S. from the Philippines on a tourist visa with his wife and children.  Back home in Quezon City, he owns and runs a successful restaurant specializing in Filipino-style fried chicken.

While touring the U.S., he learned that a family friend in Los Angeles also ran a restaurant specializing in Filipino cuisine and wanted to retire and sell the restaurant.

Excited of the prospect of purchasing this restaurant in Los Angeles and bringing his special Filipino-style fried chicken to the states, Joseph began to consider how this could be possible.

Joseph must meet specific requirements to qualify for a treaty investor E2 Visa under immigration law.

Requirements: E2 Visa Treaty Investor

  • The investor, either a real or corporate person, must be a national of a treaty country.  The Philippines is a treaty country.  For a list of all the participating countries for the E2 visa, select Treaty Countries.
  • The E2 Visa investment must be substantial. 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.
  • The E2 Visa investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • The E2 Visa investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
  • The E2 Visa investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • The E2 Visa investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

Who May File for Change of Status to E2 Visa Classification

If the E2 Visa treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E2 Visa classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

How to Obtain E2 Visa Classification if Outside the United States

A request for E2 Visa classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E2 Visa abroad.  Upon issuance of an E2 Visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E2 Visa nonimmigrant.

Period of Stay in E2 Visa Classification

Qualified E2 Visa treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E2 Visa nonimmigrant may be granted.  All E2 Visa nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E2 Visa nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E2 Visa Status

An E2 Visa treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E2 Visa employee, however, may also work for the E2 Visa treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E2 Visa status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the E2 Visa treaty investor or employee’s previously approved relationship with the organization.  The E2 Visa treaty investor or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the E2 Visa treaty investor or affected employee.  The Form I-129 must include evidence to show that the E2 Visa treaty investor or affected employee continues to qualify for E2 Visa classification.

It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  An E2 Visa treaty investor or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or organization must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E2 Visa treaty investor status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E2 Visa status.  See 8 CFR 214.2(e)(22) for details.

Family of E2 Visa Treaty Investors and Employees

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E2 Visa nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking change of status to or extension of stay in an E2 Visa dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E2 Visa workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E2 Visa spouse may work.

As discussed above, the E2 Visa treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States.  Unless the family members are accompanying the E2 Visa treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E2 Visa status, and apply for an extension of stay before their own validity expires.

The Law Office of Irwin M. Avelino has successfully helped hundreds of Filipinos obtain temporary working visas and permanent residence (green card) based on employment in the United States with a 99% approval rating.  These include accountants, engineers, IT professionals, graphic designers/artists, investors, teachers, nurses, researchers, land surveyors, market research analysts, scientists, architects, human resource specialists, executives, unskilled workers, and many others.
Because:

  • Each employment category has complex requirements and conditions;
  • Each employer has varying needs; and
  • Each applicant for employment has unique credentials,

It is best you discuss your options with an immigration attorney experienced in E2 Visa petitions and visa applications.