The E-2 treaty investor status is reserved for those nonimmigrant aliens who seek to invest in the United States. To qualify:
- there must be a treaty between the U.S. and the alien’s country of nationality
- the individual and/or business possess the nationality of the treaty country
- the applicant has invested or is actively in the process of investing
- the enterprise in the U.S. is a real and operating commercial enterprise
- the investment is substantial
- the investment is more than a marginal one solely for earning a living
- the applicant is in a position to develop and direct the enterprise
- the applicant, if an employee, is destined for an executive or supervisory position, or possesses skills essential to the firm’s operations in the United States, and
- the applicant intends to depart the U.S. when the E-2 status terminates.
The investment enterprise must be at least 50%-owned by nationals of the treaty country.
The investment must be active, not just passive investments. It must involve funds and assets for which the investor is personally at risk; loans secured by the assets of the enterprise are not acceptable. The investment must be substantial, measured by the amount actually invested in proportion to the total value of the enterprise or to the starting cost of the enterprise. Finally, the enterprise must generate sufficient revenues to employ U.S. workers.
The E-2 status alien must be a bona fide nonimmigrant who intends to depart the United States when his or her stay is completed, but the alien does not need to maintain a foreign residence and does not need to specify a date by which he or she intends to depart the U.S. permanently. The alien may remain in the U.S. indefinitely, as long as the investment enterprise continues to qualify for treaty classification and the alien continues to maintain valid status. An alien already in the U.S. in a different nonimmigrant category may apply for a change of nonimmigrant status to E-2 classification.
Treaty aliens are admitted to the U.S. for an initial period of one year, regardless of the period of validity of the alien’s visa. On every trip abroad, a treaty alien is readmitted for a new period of one year. Treaty aliens who travel abroad at least once a year never need to obtain extensions through an application to the USCIS. Those who do not travel abroad need to apply for extensions to the USCIS by mail; the USCIS can grant extensions in increment of two years with no limit on the total period of stay.
Family members of an alien qualified for E-2 status are classified in the same subcategory as the principal alien; no separate subcategory is designated just for family members. Spouses of the principal alien may apply for employment authorization. Children of treaty aliens cannot obtain INS authorization to work, but they can attend school and may qualify for a different nonimmigrant category for which employment is authorized. Family members do not have to be citizens of the treaty country.