E-2 Treaty Investors :: Law Offices of Sreepadraj Venkatarao, P.C

E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

U.S. Department of State maintains current list of countries with whichthe United States maintains a treaty of commerce and navigation.

General Qualifications of the Employee of a Treaty Investor

To qualify for E-2 classification, the employee of a treaty investor must:

Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
Meet the definition of "employee" under relevant law
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty investor status. If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization's overall operation, or a major component of it.

Special qualifications are skills which make the employee's services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to:

The degree of proven expertise in the employee's area of operations
Whether others possess the employee's specific skills
The salary that the special qualifications can command
Whether the skills and qualifications are readily availablein the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.

Period of Stay
Qualified treaty investors and employees will be allowed amaximum initial stay of two years. Requests for extension of stay may begranted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E-2 Status
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization's parent company or one of its subsidiaries as long as the:

Relationship between the organizations is established
Subsidiary employment requires executive, supervisory, oressential skills
Terms and conditions of employment have not otherwise changed.

USCIS must approve any substantive change in the terms or conditions of E-2 status. A "substantive change" is defined as afundamental change in the employer's basic characteristics, such as, but notlimited to, a merger, acquisition, or major event which affects the treaty investor or employee's previously approved relationship with the organization. The treaty investor or enterprise must notify USCIS and may simultaneously request an extension of stay for the treaty investor or affected employee. The request must include evidence to show that the treatyinvestor or affected employee continues to qualify for E-2 classification.

It is not required to notify USCIS about non-substantive changes. A treaty investor or organization may seek advice from USCIS, however, to determine whether a change is considered substantive by filing a petition with fee and a complete description of the change.

A strike or other labor dispute involving a work stoppage atthe intended place of employment may affect a Canadian or Mexican treatyinvestor or employee's ability to obtain E-2 status.

Family of E-2 Treaty Investors and Employees
Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor oremployee. These family members may seek E-2 nonimmigrant classificationas dependents and, if approved, generally will be granted the same period ofstay as the employee. If the family members are already in the UnitedStates and are seeking change of status to or extension of stay in an E-2dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-2 workers may apply for work authorization. If approved, there is no specific restriction as to where the E-2 spouse may work.

As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.