E-2 Treaty Investors
The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. A treaty county means a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation.
Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
Who May File for Change of Status to E-2 Classification
If the treaty investor is currently in the United States in a lawful nonimmigrant status, they 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 to request a change of status to E-2 classification on the employee’s behalf.
How to Obtain E-2 Classification if Outside the United States
A request for E-2 classification may not be made on Form I-129 if you are physically outside the United States.
Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad.
Upon issuance of a visa, the person may seek admission at a United States port of entry as an E-2 nonimmigrant.
General Qualifications of a Treaty Investor
Qualification for E-2
To 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; and
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.
The Investment Source
The 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.
The Amount of Money
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 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.
No Marginal Enterprises
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 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.
General Qualifications of the Employee of a Treaty Investor
Qualifications of the E-2 Employee
To 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; and
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
The Principal Alien Employer
If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.
These owners must either: (a) be maintaining nonimmigrant treaty investor status or (b) if the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.
Duties that are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation, or a major component of it.
Special qualifications are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the treaty enterprise. There are several qualities or circumstances that could, depending on the facts, meet this requirement. These include, but are not limited to:
The degree of proven expertise in the employee’s area of operations
Whether others possess the employee’s specific skills
The salary that the special qualifications can command
Whether the skills and qualifications are readily available in the United States.
Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.
Period of Stay
Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no 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, if determined admissible by a U.S. Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States.
Terms and Conditions of E-2 Status
A 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; and
Terms and conditions of employment have not otherwise changed.
USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the alien’s eligibility for E classification, such as, but not limited to:
Sale of the division where the alien is employed; or
Other event that affects the treaty investor or employee’s previously approved relationship with the treaty enterprise.
Where there has been such a substantive change, the treaty investor or enterprise, if it wishes to continue to employ the alien in E-2 status, must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee. The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification. An employer who no longer employs an E-2 nonimmigrant is urged to inform USCIS of this upon termination of the E-2 nonimmigrant’s employment.
A treaty investor is not required to file a new Form I-129 to notify USCIS about non-substantive changes. A treaty investor or E-2 employee enterprise may seek advice from USCIS, however, to determine whether a change is considered substantive. To request advice, the treaty investor or enterprise must file Form I-129 with fee and a complete description of the change.
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 E-2 status.
Family of E-2 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. Spouses and children 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 changes of status to or extensions of stay in an E-2 dependent classification, they may apply by filing a single Form I-539, Application to Change/Extend Nonimmigrant Status, with fee.
Spouses of E-2 workers in valid E-2 or E-2S status are considered employment authorized incident to status, except for spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are required to apply for employment authorization.
DHS-issued evidence of such employment authorization, particularly that may be presented to employers for completion of Form I-9, Employment Eligibility Verification, include:
An unexpired Form I-94 with a notation reflecting E-2S nonimmigrant status. As of Jan. 30, 2022, USCIS and CBP began issuing Form I-94 with a new admission code for certain spouses of E-2 workers: E-2S. An unexpired Form I-94 reflecting this new code is acceptable as evidence of employment authorization under List C of Form I-9.
An unexpired Form I-94 with a notation reflecting E-2 nonimmigrant status, together with a notice from USCIS regarding the new admission code. USCIS will send E spouses with a Form I-94 issued by USCIS before Jan. 30, 2022, that was notated with E-2 nonimmigrant status and who are employment authorized incident to status, a notice regarding the new admission code that, together with an unexpired Form I-94 reflecting E-2 nonimmigrant status, serves as evidence of employment authorization for such spouses under List C of Form I-9. For more information, see this web alert.
An unexpired Employment Authorization Document (EAD). E spouses who are employment authorized incident to status are not required to request employment authorization by filing Form I-765, Application for Employment Authorization, but may still file Form I-765, with fee, in order to obtain an Employment Authorization Document (Form I-766 EAD). Form I-766 EAD can be presented to employers as evidence of both identity and employment authorization acceptable under List A of Form I-9.
An expired EAD with additional documentation to show the EAD is automatically extended.
Certain E spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet the following conditions:
They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E nonimmigrant status; and
They have an unexpired Form I-94 showing their status as an E-2 or E-2S nonimmigrant.
EAD Extension period
DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the automatic extension period.
Effective May 4, 2022, DHS is temporarily increasing the automatic extension period and providing up to 360 days of additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic EAD extension will therefore continue until whichever comes first:
The end date on the dependent spouse’s Form I-94 showing valid L-2 or L-2S nonimmigrant status, as applicable;
The date we approve or deny their application to renew the previous EAD; or
540 days from the “Card Expires” date on the front of the previous EAD.
Additional information on the temporary increase of the automatic extension period is available on USCIS.
Eligible E spouses may present the following evidence of the automatic EAD extension to employers for Form I-9 purposes:
Form I-94 indicating the unexpired E-2 or E-2S nonimmigrant status;
Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17)”; and
The expired EAD issued under the same category, Category A17.
Travel of E-2 investor
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, or the family members separately travel abroad and return to the United States within the new readmission period, 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 status and apply for an extension of stay before their own validity expires.
E-2 Visa Extension
How to Apply for E-2 Visa Extension
You may apply for an E-2 extension because you are coming close to the 2-year mark.
There are two options to extend your status.
The first option is to receive an extension when you re-enter the U.S. as long as you adhere to the requirements that the visa was granted to you. Depending on your travel schedule, this may not be convenient or manageable.
The second option is to file for an extension of stay if you do not plan on traveling out of the U.S. before the expiration of your visa.
E-2 visa extensions are granted in increments of 2 years.
In order to file for an extension of stay, you must submit:
Form I-129, Petition for Non-immigrant Worker
Form I-539, Application to Extend or Change Non-immigrant Status
Copy of Form I-94 Arrival/Departure document
Copy of original Form I-797, Notice of Action (if status was previously extended or approved)
Copy of passport plus E-2 visa
Employer letter demonstrating why an extension is required
Copies of personal and business tax returns (prior 2 years) plus payroll tax returns
It’s necessary to point out that if you file the extension before your I-94 expires, then you can still work for 240 days pending the decision.
If you file after the expiration, you can stay only 40 days pending the decision. If you don’t receive a response in those 40 days, you’ll be required to stop working and leave the U.S.
How to Apply for E-2 Visa Renewal
The renewal will grant you another 2-years of U.S. residency and can be applied for as many times as you want.
You have two options when applying for renewal, depending on the place of the application:
If you are applying from outside the U.S., you must apply through a U.S. consulate.
If you are applying from within the U.S., you must apply through the USCIS process.
Premium Processing Option
If you need a fast response on your E-2 application, one advantage to applying with USCIS is that there is an option to pay an additional $2,500 to the government for them to adjudicate the case and issue a response (approval, denial, or Request for Evidence) within 15 calendar days.
What To Do for E-2 Renewal Denial
As long as you comply with the renewal requirements, it is unlikely that your E-2 visa extension will be denied. However, some E-2 holders fail to successfully extend their visas.
For instance, it is not likely to get your 2-year extension denied at the border. Border control officers frequently deal with these types of renewals, and unless you have broken U.S. laws or immigration regulations, you should not be denied. If you do encounter difficulty renewing your visa at the border, you can still use the second option and submit Form I-129.
Let’s suppose you are in the worst-case scenario, and your renewal or extension gets denied. The first thing that you should know is that along with the denial notice, you will receive a detailed statement outlining the reasons for the denial.
Depending on the denial reasons, you will have to fill out Form I-290B and either of the following:
File an appeal with the Administrative Appeals Office;
File a motion to reconsider the USCIS decision; or
File a motion to reopen the USCIS decision.
Common Reason for E-2 Renewal Denial
Your renewal application may be denied is due to the marginality requirement. Marginality refers to the notion that is specific to an E-2 visa, which states that the business must be profitable beyond solely providing for the owner and their family. The U.S. government wants business immigrants to contribute to the economy, and one way to do so is by creating jobs. Especially when you have been running a business for 5 years, you must have been able to scale it enough to afford to employ several workers.
This is the biggest reason why renewal applications get rejected – the lack of proof that they are beyond marginality. An experienced immigration attorney would be able to help you gather and provide enough evidence and supporting statements to satisfy this requirement.
If you need to file or renew E-2, please send us you questions directly at Info@lawofficeofsunahlee.com today!
We are happy to help your case.