E2 Visa: Qualification

Posted on October 17, 2006 by Warren Wen | Category: Immigration

Introduction of E-2 Visa: Qualifications

As mentioned in previous article, E-2 visas, also known as Treaty Investor visas, are geared towards key employees of U.S. businesses that are owned by 50% or more nationals of foreign investment treaty countries. There are several restrictions and qualifications which the applicants need to consider before filing an E-2 application.

The first constraint is the nationality of the employee.  In order to be eligible for an E-2 visa, the employee must be a citizen of a country that has an investor treaty with the U.S.  Legal residency in that country is not enough.  The list of countries with investor treaties can be found in the U.S. Department of State Bureau of Consular Affairs website.

Secondly, at least 50% of the business must be owned by the citizens of the same country where the foreign employee comes from.  Furthermore, 50% or more owners must either: 1) live outside the United States and be qualified for an E-2 visa themselves (they do not need to have the actual visa), or 2) live in the United States with an E-2 visa.  The business in the United States must also be established, or significant steps towards this must have already taken place before the application for the visa is filed.

Thirdly, the applicant must either be a principal owner, supervisor, executive, or key employee of the company.  He or she is considered to be a principal owner if he or she owns at least 50% of the company and has some control over the operations of the company.  Similarly, to qualify as a supervisor or executive, he or she must prove that he or she holds a position of authority over the operations of the company as well as have the capacity to hold such a position.  The term “key employee” is vaguer, and the qualification of a person under this category is evaluated on a case-by-case basis.  Generally speaking, however, the employee does not have to have unique skills, but must be crucial to the success of the company.

Fourthly, the U.S. company must have a substantial cash investment.  The amount for this is not specified, but the determination is made based on the type of business.  For example, a large retail store chain will need a higher investment than a small restaurant.  The company must also be actively engaged in trade or services; the investment cannot be merely in stocks, bonds, or land speculation.

The final requirement for the employee who is seeking to obtain an E-2 visa is to prove the intent of leaving the United States after the business is completed.  This means that the applicant will be required to show the proof of property, possessions, or family elsewhere.  The fact that he or she has either an approved immigrant visa petition or permanent labor certification should not (by itself) cause the application to be rejected.

The spouse and unmarried children under 21 of the applicant can also qualify for E-2 visas, if they can prove the family relationship to the primary applicant.  Moreover, the spouse of an E-2 visa hold is allowed to apply for work permit and work in the U.S. legally.

The E-2 visa has many advantages that could make it desirable for many.  However, because the E-2 visa application process has many restrictions and qualifications that vary from case to case, we strongly advise people to seek consultation with an experienced attorney before applying for this visa.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.