May I Transfer E-2 Visa to Another Company?
May an E-2 Visa be transferred to another company?
One of the most frequent questions is whether a person currently in the United States on E-2 Visa may transfer his/her E-2 Visa to another company. In other words, may a person change job while in the United States and maintain E-2 Visa status?
Also, may an E-2 Visa investor change the nature of the business in which the investment has been made?
The answer is generally yes, however certain requirements must be met.
What is an E-2 Investor Visa
The E-2 Treaty Investor Visa allows nationals of a Treaty Country to reside and work in the United States for a company in which they have invested a substantial amount of money.
Nationality: the E-2 Visa Investor must be a national of a Treaty Country. A list of treaty countries can be seen here.
Substantial investment: substantial funds should be invested in creating a business from scratch or to purchase an existing business in the United States.
Investment at risk: funds should be put irrevocably at risk, meaning they should be used for business related expenses that cannot be recovered in case the business goes sideways.
Employees: Employees must have the same nationality of the investor – although an exception to this rule is when the U.S. company is equally owned by two investors coming from different treaty countries – and they should be employed in a managerial supervisory capacity or possess essential skills.
Restrictions of the E-2 Visa status
Typically, the E-2 Visa investor and employees must work only for the business in which the investment has been made. Thus, the beneficiary of an E-2 Visa cannot work for any other company. However, a few deviations from this rule are admitted.
Working for your company’s parent or subsidiary
The E-2 employee may work for the sponsor company’s parent or one of its subsidiaries granted that 1) the relationship between the organizations is established; 2) the employee continues working in an executive supervisory capacity, or possesses essential skills that are crucial to the success of the company; and 3) the employment terms and conditions are not being changed.
The E-2 Visa Substantive Change – Working for an unrelated company
Any “substantive change” to the E-2 status terms and conditions must be approved by USCIS. A ‘substantive change’ is defined as “a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.”
An E-2 Visa investor may not radically change the nature of the business he is conducting. If the E-2 Visa investor intends to change the nature of the activity, should first consult with an E-2 Visa attorney to understand whether such change is to be considered “substantive”. In the doubt persists, the E-2 Visa investor may always seek a USCIS determination as to whether the change is substantive or not.
Just by way of an example, if you are running a restaurant and you want to open a bar, most likely the change will not be considered substantive and there will be no need to inform USCIS.
On the same note, of course if an E-2 Visa employee wants to switch jobs, that would be regarded as a substantive change to the terms and condition of his / her employment and USCIS’s approval should be definitely requested.
How to get the E-2 Visa transfer done
Any time a substantive change exists, whether from the investor or employee standpoint, a new form I-129 plus E Supplement should be filed with USCIS, simultaneously requesting an extension of stay. The Form I-129 must show that the new employer continues to meet the E-2 Visa requirements as outlined above.
For instance, if you are Italian, you cannot get your E-2 Visa transferred if the new company is American or Canadian or from any other country other than yours. Also, the new business must have invested a substantial amount of money and the employee will still be employed in an executive, managerial or essential worker capacity. The employee should maintain his intent to depart the U.S. once the E-2 Visa expires.
The alternative: Consular Processing
Going through consular processing at the U.S. Embassy in your country is still the best option to get the E-2 Visa transfer done, even though the beneficiary is already in the United States.
Two main reasons: (i) your E-2 Visa will be granted for a longer period of time (most likely 5 years vs. 2 years through USCIS) and (ii) your E-2 Visa won’t expire as soon as you leave the country but it will be automatically renewed when you come back to the U.S.
Sometimes, however, people prefer not to leave the country, or they are in a rush to switch jobs. For these and other reasons, in some instances filing through USCIS through form I-129 might be the quickest and most practical solution.
If you are in the United States as an E-2 Visa investor or employee and intend to change business or work for a different company, you should do that under the guidance of one of our E-2 Visa attorneys. E-2VisaWorld specializes in E-2 and E-1 Visas. Contact us today filling out the form below or submitting our E-2 Visa Eligibility Survey.