Who is Eligible to Obtain E-2 Visa Status?

Jun 18, 2020

E-2 Visa is a non-immigrant visa allowing individuals from a Treaty Country (see E-2 Visa country list here) to reside and work in the United States for a US company in which they (or other people from the same Treaty Country) have invested a substantial amount of money.

In this article, we will discuss what requirements an individual is required to meet to be eligible for E-2 Visa status. With respect to the requirements of the company, including the investment, please read our article here.

 

E-2 Visa Nationality Requirement

As noted above, the first thing to check is whether the country of citizenship of the E-2 Visa applicant is included in the E-2 Visa Country list maintained by the US Department of State. Individuals may qualify for E-2 Visa for the United States only if they are nationals of a country that maintains specific treaties of commerce or friendship with the United States.

Notable exclusions are Russia and China, whose citizens, as a result, may not qualify for E-2 Visa. However, Russian and Chinese citizens may have the following alternatives: (i) obtain E-2 Visa by acquiring second citizenship from a country such as Grenada (through some investors’ program), we discuss this option here; or (ii) apply for EB-5 Visa, a special green card for investors.

Unfortunately, EB-5 has more stringent requirements compared to E-2 Visa, a way larger investment above all. Therefore, the most viable option for citizens of China and Russia in all likelihoods remains to apply for E-2 Visa through second citizenship. We discuss the differences between E-2 Visa and EB-5 Visa here.

 

E-2 Visa Requirements for Investors

First step towards obtaining E-2 Visa is to create a US business entity, limited liability company or corporation, as the case may be. We discuss how to form a US company and the differences between corporation and limited liability company here.

In order to qualify for E-2 Visa status, the E-2 investor is required to show operational control over the US entity, by either owning at least 50% of it, or, if the investor is a minority shareholder, by covering a position, such as CEO or managing member, whereby he will nonetheless exert control over the US entity. Control means power of making binding decisions on behalf of the company, alone or together with an equal partner.

In these respects, it is crucial to draft a company operating agreement to reflect who are the shareholders, their share of membership interest, and who covers which position and with what powers. A properly drafted operating agreement is essential to the positive outcome of the E-2 Visa application. Our E-2 Visa attorneys will take care of forming your US business entity and drafting the company operating agreement in the way it is supposed to be drafted to achieve approval of your E-2 Visa application.

A company may be equally owned by two members. In this case, if both members apply for E-2 Visa, the US Consulate most likely will want to see that they equally share the power of making binding decisions on behalf of the company. One way to achieve this result is by providing each member with a reciprocal veto power on the respective decisions. Obviously, this structure may cause dangerous deadlocks, but that does not concern the Us immigration. This issue should be addressed separately and our E-2 Visa attorneys will help you with that.

 

E-2 Visa Requirements for Employees

In order to qualify for E-2 Visa status, the employee of a E-2 treaty investor must:

  1. Be the same nationality as the investor – who must be a national of a Treaty Country.
  2. Be employed by the US entity in a managerial or executive capacity, or be employed in a position that requires special skills and qualifications.

Nationality. To be able to employ citizens from his own country of citizenship, the E-2 Visa investor must own at least 50% of the US company. If the investor does not directly own the US business entity, but owns it through a foreign entity, the country where the foreign entity is located is not relevant with respect to the nationality requirement in question. Only the nationality of the individual investor is relevant.

For instance, if the US company is owned by a Russian entity, which, in turn is owned by a UK individual, for E-2 Visa purposes, although Russia is not included in the E-2 Visa country list, the Russian entity is disregarded and the nationality of the US entity will be deemed to be that of the individual ultimate shareholder (which in this case is UK, that qualifies for E-2 Visa).

If the US company is 50/50 owned by partners from two different countries, employees from either or both countries – as long as they are both treaty countries – may be eligible for E-2 Visa status.

Scenario #1: the US entity is 50% owned by an Italian citizen and 50% by a UK citizen. Here, since both Italy and UK are Treaty countries and each member owns at least 50% of the US entity, employees from both countries may be eligible for E-2 Visa.

Scenario #2: the US entity is 50% owned by an Italian citizen and 50% by a Russian citizen. Here, although each member owns at least 50% of the US entity, only employees from Italy may qualify for E-2 Visa status, since Russia is not included in the treaty countries.

Scenario #3: the US entity is 50% owned by a UK citizen, 25% by a German citizen and 25% by a Turkish citizen. Here, all of the three countries are Treaty Countries, however only the UK citizen owns 50% of the US company, which is the minimum threshold to hire employees from your own country.

Managerial or executive duties. The E-2 Visa employee must perform duties within the US entity of an executive or supervisory character, defined by USCIS as those that “primarily provide the employee ultimate control and responsibility for the overall enterprise operations or a major component of it”.

Special skills and qualifications. Even though not covering a managerial or executive role, a prospective employee of the US entity may qualify for E-2 Visa if he / she possesses special skills or qualifications essential to the efficient business operations of the company.

Factors to consider when evaluating this requirement include:

  • Expertise and prior experience of the applicant for that specific position
  • Applicant’s salary
  • Whether the applicant’s role is easily replaceable in the US labor market.

Immigration rules are often subject to interpretation and this one makes no exception. The scrutiny on whether the position covered by the E-2 employees meets the above mentioned standards may be tricky sometimes and certain managerial positions may not qualify as managerial in the eyes of the US consular officer, even though they definitely are.

Indeed, a special attention must be placed on creating a job description that fits into the USCIS requirements, otherwise your E-2 Visa application will be most likely denied. Our E-2 Visa lawyers specialize in assessing whether or not the proposed employee’s position and duties meet the requirements provided by USCIS and will help you crafting a more fitting job description when necessary.

We discuss more in depth the E-2 Visa employee’s position and duties requirements here.

 

E-2 Visa for Family Members

Immediate family members of E-2 Visa investor and E-2 Visa employee may qualify for E-2 Visa status as well. Immediate family members for E-2 Visa purposes are limited to spouses and underage children. Other family members are not eligible.

Family members’ E-2 Visa is strictly dependent upon the E-2 Visa of the principal applicant: once this is over, also the dependents’ visa is over.

A spouse of an E-2 Visa holder may work for the E-2 Visa company or for any other company in the United States or abroad, or simply do nothing. If the spouse intends to work in the US, he / she will be required to file I-765 and get the work authorization (EAD).

Underage children of E-2 Visa holder may only be enrolled in school.

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