E-2 Treaty Investors
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.
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.
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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.
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