The E-2 visa is available to nationals of certain countries that have entered into certain treaties with the United States. The foreign national needs to have the intention to develop and direct the operations of a commercial enterprise in which he or she has invested, or is actively in the process of investing a substantial amount of capital. At least 50% of the stock of the U.S. Company must be owned by nationals of the treaty country. The investment must be “at risk” and in the possession and control of the employer. The investment cannot be a passive investment such as stock or undeveloped land.

Although the amount of the investment must be substantial, the law does not specify a minimum amount of investment. The test for substantiality is: (i) the amount of qualifying funds invested weighed against the total cost of purchasing or creating the enterprise; (ii) the amount normally considered sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise; and (iii) a magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise. The investment cannot be solely to earn a living for the investor and family.

The investor must manage the business and have a controlling interest in the business. Once the investor attains E-2 status in the United States, the company can petition for executives and supervisors as well as “essential” employees, all of whom must have the same nationality as the employer. An essential employee is one whose skills are indispensable to the success of the enterprise.

Although the visa is typically issued for 5 years, the admission or “stay” in the United States is limited to 2 years and, unlike other visas, there is no limit as to the number of extensions that may be filed or visas that the investor could renew. An E-2 investor, therefore, could potentially remain in the United States in E-2 status for the rest of his or her life as long as the extensions continue to be approved. The spouse and minor children (under 21) of the investor are also granted E-2 status and spouses can apply for employment authorization and social security card, allowing them to work in the United States.