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, or a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for E-2 classification.
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
Show at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device
Funds must not have been obtained, directly or indirectly, from criminal activity
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Regulatory Criteria
Substantial Amount of Capital
A substantial amount of capital is: (1) substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; (2) sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and (3) of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
Examples
Substantial relative to the total cost of the enterprise
Sufficient to ensure financial commitment to successful operation
The lower the cost of the enterprise, the higher the investment must be proportionately
Investment must be at risk in the commercial sense with objective of generating profit
Bona Fide Enterprise
A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
Examples
Real, active, and operating commercial undertaking
Produces services or goods for profit
Meets applicable legal requirements for doing business
Not a paper organization or idle speculative investment
Not Marginal Enterprise
The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and family. A new enterprise may qualify if it has the capacity to generate such income within five years.
Examples
Must have capacity to generate more than minimal living income
New enterprises: capacity to meet income threshold within 5 years
Consider business plan projections and financial viability
Marginal status evaluated based on present and future capacity
Employee Qualifications
Employees of treaty investors must be the same nationality as the principal alien employer, meet the definition of 'employee' under relevant law, and either engage in executive or supervisory duties, or if employed in a lesser capacity, have special qualifications.
Examples
Executive or supervisory character: ultimate control and responsibility for the enterprise's overall operation or major component
Special qualifications: skills and aptitudes making services essential to efficient operation
Proven expertise in the employee's area of operations
Skills not readily available in the United States
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Application Process
Treaty Country
Confirm nationality of a country with qualifying treaty with the United States.
Investment
Invest or be actively in the process of investing substantial capital in a bona fide U.S. enterprise.
Documentation
Compile evidence of investment, enterprise viability, and operational control.
Application
If in U.S.: file Form I-129 for change of status. If abroad: apply for E-2 visa at U.S. consulate.
Adjudication
USCIS or consular officer evaluates whether requirements are met.
Admission
Seek admission at U.S. port of entry as E-2 nonimmigrant.
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Key Benefits
Maximum initial stay of 2 years
Extensions available in increments of up to 2 years each - no limit on number of extensions
Spouse (E-2S) is employment authorized incident to status - no separate EAD required
Unmarried children under 21 may accompany in E-2 dependent status
Automatic 2-year readmission when returning from travel abroad
May work for parent company or subsidiaries under certain conditions
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Documents Needed
Valid Passport
Form I-129 (if changing status in U.S.)
Evidence of nationality of treaty country
Evidence of substantial investment (bank records, wire transfers, contracts)
Business plan demonstrating viability and non-marginal nature
Evidence of ownership or operational control (stock certificates, organizational documents)
Enterprise registration and legal documents
Evidence that funds were lawfully obtained
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Frequently Asked Questions
What is a 'substantial' investment?
A substantial investment is proportional to the total cost of the enterprise - the lower the cost, the higher the percentage must be invested. It must be sufficient to ensure your financial commitment to successful operation and of a magnitude to support the likelihood of successfully developing and directing the enterprise.
What is a 'marginal' enterprise?
A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and family. A new enterprise may not be considered marginal if it has the capacity to generate such income within five years from the date of classification.
How long can I stay on E-2?
Initial stay is up to 2 years. Extensions may be granted in increments of up to 2 years each, and there is no limit to the number of extensions. However, you must maintain an intention to depart the United States when your status expires or is terminated.
Can my spouse work?
Yes. Spouses of E-2 workers in valid E-2 or E-2S status are considered employment authorized incident to status. They do not need to file a separate Form I-765 for an EAD, though they may choose to do so. An unexpired Form I-94 with E-2S notation is acceptable as evidence of employment authorization.
What countries have E-2 treaties with the U.S.?
The U.S. Department of State maintains a current list of treaty countries. These include countries with which the United States maintains a treaty of commerce and navigation, a qualifying international agreement, or which has been deemed a qualifying country by legislation.
What happens if there's a substantive change in my business?
USCIS must approve any substantive change in the terms or conditions of E-2 status, such as a merger, acquisition, sale of division, or other event affecting your relationship with the treaty enterprise. You must file a new Form I-129 with evidence showing continued eligibility.
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Fees
Attorney Fee for I-129/DS-156E
$8,365 (Initial $3,365; $1,250/month)
USCIS Fee for I-129
$1,015/$510
Premium Processing
$2,805
Asylum Program
$600/$300/$0
Attorney Fee for DS-160
$500/person
Fee for DS-160 Embassy Fee
$315
Fees are estimates and may change. Contact us for a quote for your specific case.
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