E-2 Information

E-2 Information

Regal Tax Services provides Franchise opportunities. These opportunities may be utilized by individuals that are seeking to start a small business in the United States to avail an E-2 visa. This sort of visa allows an individual and their immediate family to not only own a prosperous franchise business but also helps their family to have legal status in the US while running their business. The visa is renewable and continues to extend as long as you remain with the business. For further details about such franchise opportunities please feel free to contact Regal Tax Services. For legal questions about your legal status or conversion to an E-2 visa, we recommend you speak to a competent immigration attorney.

Please review some general information about E-2 visa and answers to some frequently asked questions below.

 E-1 Treaty Trader Visa

This is a non-immigrant visa that allows foreign nationals of a treaty nation to enter the U.S. and carry out a business that is considered a “substantial trade.” A “treaty nation” is a country that has a treaty of commerce agreement with the United States. Our knowledgeable attorneys can determine your eligibility and help you understand this process.

 E-2 Investor Visa

This visa is only available to citizens of certain countries and if you qualify, it will allow you to enter the U.S. and work in a capacity to operate a business for which you have made a significant investment. The business must be ongoing and active, and must expect to employ American workers. A minimum investment is typically $75,000.00 or larger.

 E-2 Treaty Investors Visa

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 with which the United States maintains 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 this classification. (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)

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.

 FAQ's

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file 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 to request a change of status to E-2 classification on the employee’s behalf.

A request for E-2 classification may not be made with USCIS 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.

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.

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.

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 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.

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.

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.

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. definition.

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.

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:

• A merger;

• Acquisition;

• 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, and may simultaneously request an extension of stay for the treaty investor or affected employee. The application 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 application 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.

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. 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 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 by filing Form I-765 with fee. 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.