8 CFR § 214.2(e): Temporary Nonimmigrant Work Visas
The E-2 nonimmigrant classification allows a national of a treaty country and their qualifying employees to come to the US to invest capital on their own behalf. It is given in increments of 2 years. The Treaty Investor’s spouse and children will be admitted as well. Spouses can apply for a work permit.
Who May File and What to File
The treaty trader or qualifying employee who is currently and lawfully in the US should file Form I-129 and I-129E to change status to E-2 classification. A request for the E-2 Visa for a person outside the US should be made with the US Consulate for the area where the person lives. (See the Checklist here)
Mandatory Initial Evidence
- Applicant must be a citizen of a country that the US maintains a treaty of commerce and navigation with AND they
- Have invested or actively in the process of investing a substantial amount of capital in a bona fide enterprise in the US, but
- NOT a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
- Are seeking entry solely to develop and direct the enterprise; and
- Intend to depart the US when treaty investor (E–2) status ends.
Employee of treaty trader or treaty investor may be classified as E–1 or E-2 if:
- they coming to the US to engage in duties of an executive or supervisory character, or
- if in a lesser capacity, the employee has special qualifications that make the alien’s services essential to the efficient operation of the enterprise
- They have the same nationality as the principal alien employer
- They must intend to depart the US at the end of their E–1 or E–2 status.
- The principal alien employer must be from the treaty country or
- An enterprise or organization at least 50 percent owned by persons in the US
- having the nationality of the treaty country or classifiable as treaty traders or treaty investors. (See the Checklist here)
An Investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information.
A Substantial Amount of Capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one;
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise;
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
A Marginal Enterprise is one that does not have the present or future capacity to support the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).
Do You Need Help Purchasing an E-2 Qualified Business?
Form time to time WorldEsquire Law Firm partners with various businesses in order to help clients or potential clients achieve their goals. L.A. BUSINESS PROS prepared the video below for the purpose of educating potential E-2 business buyers on ways to reach their objectives. WorldEsquire Law Firm expressly disclaims any responsibility and/or liability and offers no opinion either way as to the viewing of this video or employment of L.A. BUSINESS PROS.