E-2 Basic Use and Requirements

The E-2 visa is for a variety of applicants, as it allows for investors, executives, supervisors, and skilled workers to apply for a work visa. There are several key elements to a successful E-2, the first of which is that a qualifying E-2 Treaty must exist for the country where the investment and foreign worker hail from.

With over 50 countries holding a qualified E-2 Treaty with the U.S. there is significant availability in this category to qualify for this visa. Unfortunately, as this is a Treaty based visa the length of visa issuance will depend on the country involved. The maximum visa validity is 5 years (although some limit visas to 18 months or 2 years, etc.), and regardless of visa validity an E-2 visa holder should be granted as a default 2 years entry by CBP on their I-94 each time the individual is inspected and admitted to the U.S.

Eligibility Criteria

The applicant must qualify as either an investor, executive, supervisor or skilled worker.

The U.S. employer must be foreign owned by the same country that the applicant holds a passport from. For example, if the applicant is Canadian, we need to qualify the investment as Canadian. If the investment is actually French (from France) then a Canadian is not qualified for E-2 purposes. Country of origin of a company is generally determined based on ownership, in its simplest form if a German founder puts their capital into a U.S. company and owns it 100% the company is German for E-2 purposes. In its most complex form, a U.S. company that is owned by a Swiss company, that is in turn owned by a Japanese company traded on the NIKKEI is a Japanese company for E-2 purposes because the rules confirm where shares are traded determines the qualifying country.

The individual does not need to have previously worked for a foreign-related entity if one exists.

The U.S. company should either be operating or ready to operate as soon as the E-2 applicant arrives and is supported by a business plan (if new) or prior financial reporting (if previously operating).

The investment in the U.S. company cannot be marginal and must be sufficient to demonstrate the company will be successful.

Advantages

Allows U.S. companies to hire foreign nationals whether or not they have a parent, subsidiaries or affiliates abroad and without the individual needing prior experience with a foreign affiliate.
Allows for dual intent and thus the processing of a “Green Card” application while residing in the U.S. and traveling internationally.

For those countries that are permitted a 5-year visa, it is the longest non-immigrant visa status permitting work authorization.

Dependent spouse is work authorized on entry as E-2S without the need for a separate employment authorization document.

Special Notes

The E-2 visa is company specific and changes in ownership need to be monitored and reported as a loss of qualifying ownership voids the visa allowance.

Processing times and filing requirements are highly variable and depend on the consulate. Processing will take place in the home country consulate, e.g. a Spanish E-2 will interview in Spain. E-2 applicants can apply for an extension or change of status through USCIS in the U.S. but will need to interview again when they next leave the U.S. and seek a visa.

STEPS OF THE CASE

Step 1 – Initial Preparation

Once the option for the E-2 is identified and confirmed and a decision is made to pursue the E-2/offer is signed, the company provides the job description, salary, start date, employee contact information, and any other necessary documents to our office (including corporate docs and business plan). We also ensure the investor/founder/employee provides their personal documents and fills out our questionnaire.

Step 2 – The Visa Petition Process

After receipt of the necessary documents and information the applicable forms and supporting letters are drafted.

The following information is submitted to the Consulate in a specific submission format:
Resume and copy of employee’s passport and prior USCIS documents;
Copies of degrees, diplomas and school records;
Brochures, promotional material or articles about the company;
Company annual report or financial statements, and business plans;
Required USCIS forms (If applying from within U.S., Form I-129 and Treaty Supplement, Form G-28); and
Company letter supporting the visa petition.

Step 3 – Interview

After submission of the application and filing of the DS-160 visa application(s) the applicant can either book an appointment or the consulate will confirm when the applicant may interview for the visa. Preparation for the interview is important to ensure the business plan and corporate approval.

If the petition for an extension of stay or new petition has been approved, an employee still in the country will receive his/her Form I-797 Approval Notice and the next time the employee leaves the country, s/he should go to the U.S. consulate to get the visa issued (see Step 5). The employee will be issued a new Form I-94 (showing H-1B status) upon re-entering the U.S. (see Step 6).

If the employee is outside the country, confirmation of the approval notice is sent to the nearest U.S. consulate where the employee has elected to get the visa issued (Step 5).

Step 4 – Visa Issuance

Typically, applications start with a consular filing so visa issuance is the approval of the application. In cases where an E-2 is approved by USCIS, the applicant will need to receive a visa the next time they leave the U.S.

Step 5 – Entry into the U.S.

When the employee arrives at their port of entry (the airport or U.S. border crossing), a Customs and Border Protection (CBP) officer will examine the individual’s passport, visa and USCIS Approval Notice (where appropriate), and then issue their Form I-94 and allow entry. An electronic I-94 will be available to access online at https://i94.cbp.dhs.gov/I94/#/home within 24 hours.

Employees are always reminded to review their I-94 document to ensure it lists the proper status and date of expiration of their status (status expiration should equal 2 years from the date of entry unless individual’s passport expires beforehand – in which case the I-94 may be limited by the passport expiry).

 

** This outline/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis. **