E-2 Treaty Investors ⋆ Borene Law Firm, P. A.

Frequently Asked Questions About E-2 Temporary Work Status

By Scott M. Borene and George C. Maxwell*

1. What is an E-2 status?

E-2 status is intended for foreign persons and companies who make a substantial investment in a business in the United States and who are from a country that has a qualifying investor treaty with the U.S. The E-2 is a nonimmigrant visa available to persons who will develop and direct the operations of an enterprise in which the person has invested, or to employees who will be employed in an executive or managerial capacity, or who are essential to the efficient operation of the business.

2. Who may be eligible for an E-2 visa?

Each person seeking E-2 status (principal investor, executive/manager or “essential skills” employee) must have the same nationality (citizenship) as the sponsoring E-2 enterprise. In addition, the spouse and children of the E-2 principal applicant may also apply for E-2 status. The sponsored principal applicant need not have worked for the E-2 enterprise or principal investor before the application.

3. When would an employer or individual use an E-2 visa?

The E-2 visa category is appropriate for situations where an individual or a foreign company invests in a business in the U.S., and in the case of a foreign company, has a need to employ persons who are citizens of the treaty country. It can be especially useful when the individual investor or foreign employees will fill positions that are likely to continue for up to several years or even longer. Because it is renewable indefinitely, it may also be appropriate for an investor who would not otherwise be eligible for a “green card” as a way to work long-term in the U.S. Unlike the H-1B category, the E-2 does not require a bachelor degree or equivalent, there are no wage requirements, there is no annual limit on the number issued, and spouses of E-2’s may apply for unrestricted work authorization.

4. What legal requirements must the principal investor satisfy to be eligible to obtain an E-2 visa?

The individual or company investor must be the principal investor in the U.S. enterprise. This means that persons from the treaty country must own at least 50% of the U.S. enterprise. The principal investor must be coming to the U.S. to develop and direct the U.S. E-2 enterprise. In addition, the investment must be “at risk” and “substantial.” To be at risk, the investment must be the investor’s own funds, or based on collateral from personal assets. Other funds, such as loans that are secured by the assets of the business itself, will not be counted toward the substantiality test. While there are no specific minimum dollar amounts legally required for an investment to be considered substantial, generally, the amount of the investor’s at-risk investment is weighed relative to the cost of purchasing or creating the enterprise. The higher the at-risk investment, the more likely the E-2 will be approved.

The investor also needs to demonstrate that the source of the investment funds is legitimate. The investor needs to demonstrate the funds originated from the investor’s account and that the investor obtained the funds from existing income, or proceeds of legitimate business transactions. The enterprise also cannot be a “marginal” one—i.e., it must be capable of generating more than a minimal living for the investor and the investor’s family. Employment of U.S. workers can be used as one way to demonstrate the investment is not marginal.

5. How long is an E-2 status valid?

A person with an approved E-2 visa may be admitted to the U.S. for up to two years at a time per trip. The E-2 visa stamp may be longer in duration than 2 years but the length of approved stay per admission is up to 2 years. Similarly, a person already in the U.S. and who changes their nonimmigrant status may be given E-2 status for up to two years at a time, but will likely need an E-2 visa to return to the U.S. after travel outside the U.S. Note that E-2 status is potentially renewable without limit in two-year increments. If there are material changes in the terms of employment or in the ownership or corporate structure of the employer, the E-2 may become invalid. If the E-2 employee engages in work activities not authorized on the visa application or the E-2 petition, the employee is in violation of U.S. laws and potentially deportable.

6. How long does it take to get approval for E-2 status?

E-2 visa processing times vary widely depending on the U.S. Consulate is reviewing the visa application. Petitions for E-2 change of status or extension of status filed with U.S. Citizenship and Immigration Services may be expedited with premium processing. Non-premium processing cases can take months. Each E-2 petition revolves around facts pertaining to the individual investor or employee, the U.S. business enterprise, and the position. Recently created entities, those with lower at-risk to total cost ratios, or positions other than top management may require significant additional legal preparation time.

7. Can E-2 status be extended?

The E-2 may be renewed in two-year increments, and may be renewed indefinitely, so long as the person in E-2 status continues to be eligible.

8. Does an E-2 automatically turn into a green card?

No. However, employers can sponsor their E-2 workers for permanent resident (“green card”) status, although such sponsorship by an individual investor may not be a practical alternative for technical reasons. Green card options other than Labor Certification are usually a better choice for E-2 principal investors. Often, Labor Certification sponsorship for a green card can work well for key (non-owner) employees.

9. How much administrative work by the employer is required?

The employer must review and sign a government form, but need not maintain special documentation beyond that required for other employees. A typical E-2 case, especially the first one by an investor company or for an individual investor may require seven hours of the investor’s or a human resource staff member’s time. As with any temporary foreign work status, the employer should maintain a tracking system so any changes in job duties will trigger a call to the employer’s immigration law firm.

10. What government agencies are involved?

Usually, an E-2 visa is applied for at a U.S. Consulate outside the U.S. Therefore, the Department of State is primarily responsible for examining E-2 visa applications. In addition, USCIS is responsible for examining E-2 petitions for persons who are already in the U.S. and who wish to change their status to E-2 or extend their existing E-2 status while remaining in the U.S. Unlike most other non-immigrant categories, Canadian citizens are required to have a valid E-2 visa to enter the U.S.

11. What is the role of the investor/employer in the E-2 work visa process?

The investor must provide basic information about the U.S. business enterprise, including corporate documents, investment details, financial condition, and other relevant business information, as well as the E-2 investor’s or employee’s intended job duties.

12. Who is on the investor’s E-2 work visa team?

Typically the E-2 team will include an immigration lawyer and a case manager from the investor’s outside immigration law firm as well as the investor, any foreign employees being sponsored as E-2s, those employees’ immediate supervisors or managers and an HR staff member. With new start-up E-2s, a business lawyer to handle incorporation and a Certified Public Accountant are usually helpful both with some initial supporting documentation and in advising on tax and corporate issues that arise in connection with opening a business in the United States. At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms.

The E-2 visa application or petition materials will contain information about the investment, the U.S. business enterprise, the job duties, and basic information about the employer’s number of employees and financial condition. If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all E-2 cases. In the case of company investors, it is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple E-2 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the E-2 program. Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

13. What are the chances of success in a typical E-2 case?

Well-documented E-2 visa applications or petitions that meet the basic legal requirements are likely to be approved. A careful screening by the immigration lawyer at the outset will normally uncover most potential complications that would reduce the probability of prompt approval. The chance of smooth approval may be somewhat reduced in cases involving recently created entities, those with lower at-risk capital, or positions other than top management.

14. Is there a minimum salary requirement?

No. However, E-2’s are intended for principal investors, and employees in management or executive positions or with “essential skills.” An unusually low salary could lead to closer scrutiny of the visa application or petition and a reduced chance of smooth approval.

15. Who usually pays the filing fees?

Anyone or any entity may pay the filing fee. In most cases, the company investor chooses to pay the filing fee, but the investor is not required to do so.

16. Who usually pays the legal expenses?

In an individual case, since the principal investor is the same as the E-2 applicant, the investor generally pays the legal costs and related expenses. Similarly, when there is a company investor, the company, as the employing entity generally pays the legal costs and related expenses. The law does not currently prohibit reimbursement by the employee.

17. Can the E-2 employee’s spouse and children also get visas?

Yes. E-2 workers’ family members may accompany them in E-2 status. A separate application for the spouse and unmarried children may be needed—E-2 status is not automatic. E-2 status is not intended for children 21 years of age or older, or for extended family members such as parents or siblings of the E-2 worker.

18. Can the E-2’s spouse and children get permission to work in the U.S.?

The E-2 spouse may apply for permission to work by filing a relatively basic USCIS application form and paying a small fee. The spouse will receive an employment authorization document, which may be renewed annually while in E-2 status. The E-2 worker’s children are not eligible for employment authorization.

19. Can the E-2’s spouse and children get permission to attend school as part-time or full-time students in the U.S.?

Yes, spouses and children in E-2 status may attend school.

Also known as E2.

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.

George C. Maxwell is an Attorney with Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Mr. Maxwell concentrates his immigration practice primarily on employment-related and business immigration matters. He is a past Chair of the Minnesota State Bar Association Immigration Section. He is currently Chair of the International Business Law Section of the Minnesota State Bar Association and Vice Chair of the American Immigration Lawyers Association (AILA) Minnesota/Dakotas Chapter. Mr. Maxwell speaks and writes frequently on immigration law topics. He authored Tips and Traps: Managing I-94 Complications, Bench and Bar, 2015, published by the Minnesota State Bar Association. In 2009, he was co-presenter at the Hennepin County Bar Association – Employment Law Section meeting on “Immigration Law for Employment Lawyers.” Also, in 2009, he was the author of Looking for World Class Talent? 20,000 U.S. Work Visas Remain for Newly-Hired Professionals, published in Bench and Bar. Prior to joining the firm, Mr. Maxwell worked first as an attorney for ExxonMobil Corporation at Exxon’s corporate headquarters in Houston, Texas, and then for the Willkie Farr & Gallagher law firm in Washington, D.C. and for the Dorsey & Whitney law firm in Minneapolis. In addition to his extensive experience in immigration law, he has significant experience in international human rights litigation, business litigation, corporate internal investigations, and white collar enforcement and compliance. His prior legal work has taken him to Russia, Central Asia, Latin America, and Southeast Asia. Mr. Maxwell graduated with High Distinction from the University of Iowa Law School. He was a Note and Comment Editor for the Iowa Law School’s Transnational and Contemporary Problems Journal. He also holds a Bachelor of Arts degree from the University of Northern Iowa, and upon graduation received the Purple and Old Gold Award for Meritorious Scholarship in Russian. He speaks both English and Russian. Mr. Maxwell is authorized by federal law and regulation to represent clients before all U.S. immigration courts and offices worldwide. He is admitted to practice before the Minnesota Supreme Court and the United States District Court for the District of Minnesota. He is also admitted to the Bar of the District of Columbia, in Washington, DC. He can be reached at gmaxwell@borene.com.