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Nationals of countries that have treaties designed to promote trade and investment between the United States and the other country can obtain visas to work in the US. These visas are called E-visas. There are two types of E visas, E-1 Treaty Trader and E-2 Treaty Investor.
E-2 Visa Category
The E-2 visa category is useful for entrepreneurs, managers and employees who need to live in the US to oversee a major investment made by the foreign national.
The treaty investor must have invested or be in the process of investing a substantial amount of capital in an enterprise she will develop and direct and that won’t be a marginal enterprise entered into solely to earn a living.
Significant Investment in US
Nationals of qualifying treaty countries who have made a significant investment in the US may qualify for E-2 Treaty Investor status. There’s no set minimum level of investment which may qualify for E-2 visa status, but the lower the investment the less likely one is to qualify.
Not only must the investment be in an operating business, but a substantial part of the investment must have been made before applying for E-2 status.
E-2 Status on Basis of Employment
Employees of qualified treaty persons or business organizations may be classified as investors if they have the treaty nationality. However, eligibility for E-2 status on the basis of employment with a qualified person or organization requires an appropriate position. The duties must be executive or supervisory. Alternatively, if the applicant is employed in a minor capacity, he must have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise.
Executive or Supervisory Duties
In deciding whether a position is executive or supervisory, the following are considered:
- Place in organizational structure
- Duties involved
- Degree of control over the operations of the firm as a whole or one of its major parts
- Number and skill level of employees the applicant is to supervise
In determining whether an applicant has essential skills, the following are considered:
- Expertise in the claimed area of specialization
- Uniqueness of the skills involved
- Salary the skills command
- Length of the applicant’s experience and training with the firm
- Extent to which the skills are needed to perform the job in the US
National of Treaty Country
To be entitled to E-2 classification, the principal applicant must be a national of the treaty country. This requirement applies whether the applicant relies on his or her own investment or is employed by a qualified person or organization.
If an E-2 applicant isn’t relying on his or her own substantial investment, but rather an employer’s, the employer as well must have the nationality of the treaty country
If the employer is an organization, regardless of the place of its incorporation, it must be at least 50% owned by persons who have the treaty nationality.
A corporation’s nationality can be presumed to be the country of its incorporation if its stock is widely dispersed and is sold exclusively on an exchange in that country.
Countries with Treaties for E-2 Visas
Albania, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, the Democratic Republic of Congo (Kinshasa), Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Gibraltar, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Mozambique, the Netherlands, the Netherlands Antilles, New Caledonia, Norway, Oman, Pakistan, Panama, Paraguay, the Philippines, Poland, the Republic of Congo (Brazzaville), Romania, Senegal, Serbia and Montenegro, Singapore, Slovakia, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, the United Kingdom, and the Territory of Wallis and Futuna Islands all have agreements authorizing treaty investor classifications to their nationals.
Questions for Your Attorney
- What’s the difference between an E-1 and an E-2 visa?
- Can an employee obtain an E-2 visa or any visa, if an employee doesn’t have the same citizenship as the foreign corporation that employees him or her?
- What if a foreign corporation wants to do business in the U.S., but the country where the corporation is incorporated doesn’t have a treaty with the U.S.? What can that corporation do?
- Are foreign language skills an essential skill that can support an E-2 application for a company’s employee?