The non-immigrant E classification is for nationals of a country with which the U.S. has an appropriate treaty of commerce and navigation or equivalent pact. In the case of the E-2, they are coming to the U.S. to direct and develop the operations of an enterprise in which they have invested, or are actively in the process of investing a substantial amount of capital. An applicant may qualify as the investor or as an employee of a qualifying investor company having the same nationality.
The accompanying spouse and child (under 21 and unmarried) are ordinarily given the same classification as the principal E-2, irrespective of their nationality.
(1) Applicant must be an alien who is a national of a treaty country.
(2) If applicant will be employed rather than doing business on his or her own account, employing company must have (same) treaty nationality.
Company's nationality is determined by its ownership, not ordinarily by its place of registry. See 22 C.F.R. § 41.51(c).
(3) Company must be at least 50 percent owned by persons with treaty country nationality who are not lawful permanent residents of the U.S. and, if in the U.S., are maintaining E-1 or E-2 status.
The treaty investor countries are:
Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Congo (Brazzaville), Congo, Dem. Rep. of the (Kinshasa), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Kazakhstan, Japan, Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Rep., Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Yugoslavia.
(4) The investment must be substantial in that it is enough to provide adequate capital for the successful operation of the enterprise.
(5) The investment must be more than marginal, in that it has the capacity to generate more than just a living to the investor and her family, or it must have a significant impact on the local economy, e.g., in providing or generating jobs.
(6) The investment must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity, as opposed to a paper organization, an idle speculative investment in, e.g., a bank account, undeveloped land or stocks, or a not-for-profit organization.
(7) The funds or other investment assets must belong to the investor, whether, e.g., by gift, savings, or inheritance. They need not come from outside the U.S. but must be received legitimately.
(8) The funds or other investment assets must be placed at risk, i.e., committed irrevocably, although they may be placed in escrow subject to issuance of the visa.
(9) An investor must be in a position to direct and develop the enterprise.
(1) The principal treaty alien, although permitted a wide range of incidental activities, like educational, social, entertainment, and cultural pursuits is not free to take on an employment activity other than the one for which the E visa was issued.
(2) The accompanying spouse and child, given the same classification as the principal alien, may pursue the same range of incidental activities; unlike the B-2 visitor, they may, e.g., be full-time students and are ordinarily accepted as such in the public schools.
(3) By statute signed on January 16, 2002, Congress finally provided for work authorization of the accompanying spouse. Spouses may now file with INS for an employment authorization document. This is not the case for accompanying children.
(4) Unlike many other nonimmigrants, treaty aliens, as defined, need not have a residence abroad that they have no intention of abandoning, nor need they show that they are coming to the U.S. for a specific, limited period of time. Although they are admitted for two years at a time, subject to extension in two-year increments, there is no over-all limit on the length of time nonimmigrants may remain in E status. They must however intend to depart the U.S. when their E status ends.
(5) There are no numerical limitations on E-2 admissions.
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