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.

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia , Bosnia and Herzegovina , Bulgaria, Cameroon, Canada, Chile, China (Taiwan) , Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia , Czech Republic , Denmark, Ecuador , Egypt, Estonia, Ethiopia, Finland, France , Georgia, Germany, Grenada, Honduras, Ireland, Israel , Italy, Jamaica, Japan , Jordan, Kazakhstan, Korea (South), Kosovo , Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia , Mexico, Moldova, Mongolia, Montenegro , Morocco, Netherlands , New Zealand , Norway , Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Serbia , Singapore, Slovak Republic , Slovenia , Spain , Sri Lanka, Suriname , Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom , Yugoslavia

Treaty investors 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. 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 investor. 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.

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.

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may request a change of status to E-2 classification.  If the investor is physically outside the United States the application is made to the U.S. Department of State, U.S. Consulate abroad. Upon issuance of a visa, the person may seek admission at a United States port of entry as an E-2 nonimmigrant.

Qualified treaty investors 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.

Geygan & Geygan, Ltd. is a boutique law firm that focuses on immigration.

Geygan & Geygan, Ltd. has concentrated on financial and immigration law for more than 20 years

Thomas J. Geygan, Jr. is the chief immigration lawyer for Geygan & Geygan, Ltd. a Cincinnati based law firm providing reliable immigration solutions to investors. With more than 21 years of practicing immigration law, Tom has become one of the most reliable lawyers to turn to when it comes to getting your immigration cases resolved!