E-2 Treaty Investors: What to Know

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain individuals with employment under such a person or a qualifying organization can also be eligible for an E-2 classification.See U.S. Department of State's Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.Who is Eligible?If the 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 E-2 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.Outside the U.S.? A request for E-2 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should call our office for further information about applying for an E-2 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant.General Qualifications of a Treaty InvestorTo qualify for E-2 classification, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
• Be seeking to enter the United States solely to develop and direct the investment enterprise.  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

General Qualifications of the Employee of a Treaty InvestorTo qualify for E-2 classification, the employee of a treaty investor must:

• Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
• Meet the definition of “employee” under relevant law
• Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

Length of StayQualified treaty investors and employees will be granted 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 E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.Terms and Conditions of E-2 StatusA 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 E-2 employee, however, may also work for the 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

Family of E-2 Treaty Investors and EmployeesTreaty 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 E-2 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 a change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-2 workers may apply for work authorization.  If approved, there is no specific restriction as to where the E-2 spouse may work.As discussed above, the E-2 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 E-2 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 E-2 status, and apply for an extension of stay before their own validity expires.