# E-2 Treaty Investors

**ALERT:** As of Dec. 23, 2022, Section 101 (a)(15)(E) of the Immigration and Nationality Act (INA) was amended to define the eligibility criteria for E visas. See Section 5902 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. 117-263, December 23, 2022, 136 Stat 2395. For all E-1 and E-2 filings received on or after Dec. 23, 2022, USCIS may request additional documentation related to how the applicant obtained treaty country nationality to ensure compliance with the amended language. In addition, for those individuals who obtained treaty country nationality through a financial investment, USCIS may require additional documentation to show that the applicant has been domiciled in the treaty country indicated in the application for a continuous period of at least 3 years at any point before applying for E-1 or E-2 classification. The current text of the statute is as follows:

(E) an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which the alien is a national, or, in the case of an alien who acquired the relevant nationality through a financial investment and who has not previously been granted status under this subparagraph, the foreign state of which the alien is a national and in which the alien has been domiciled for a continuous period of not less than 3 years at any point before applying for a nonimmigrant visa under this subparagraph, and the spouse and children of any such alien if accompanying or following to join such alien;

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) 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. (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)

See U.S. Department of State's Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 to request a change of status to E-2 classification on the employee’s behalf.

A request for E-2 classification may not be made on Form I-129 if you are physically outside the United States. Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad. Upon issuance of a visa, the person may seek admission at a United States port of entry as an E-2 nonimmigrant.

To qualify for E-2 classification, the treaty investor must:
                    - Be a national of a country with which the United States maintains a treaty of commerce and navigation;
                    - Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
                    - Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.  See 8 CFR 214.2(e)(12) for more information.

A substantial amount of capital is:
                    - Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
                    - Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
                    - Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).

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; and
                    - 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 either: (a) be maintaining nonimmigrant treaty investor status or (b) 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.  See 8 CFR 214.2(e)(3)(ii).

Duties that are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the treaty enterprise. There are several qualities or circumstances that 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 available in 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.  See 8 CFR 214.2(e)(18) for a more complete definition.

Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no 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, if determined admissible by a U.S. Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States. 

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, or essential skills; and
                    - Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the alien’s eligibility for E classification, such as, but not limited to:
                    - A merger;
                    - Acquisition;
                    - Sale of the division where the alien is employed; or
                    - Other event that affects the treaty investor or employee’s previously approved relationship with the treaty enterprise. 

Where there has been such a substantive change, the treaty investor or enterprise, if it wishes to continue to employ the alien in E-2 status, must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee. The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification. An employer who no longer employs an E-2 nonimmigrant is urged to inform USCIS of this upon termination of the E-2 nonimmigrant’s employment.

A treaty investor is not required to file a new Form I-129 to notify USCIS about non-substantive changes. A treaty investor or E-2 employee enterprise may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or enterprise must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-2 treaty investor status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status. See 8 CFR 214.2(e)(22) for details.

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 or employee. Spouses and children may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking changes of status to or extensions of stay in an E-2 dependent classification, they may apply by filing a single Form I-539, Application to Change/Extend Nonimmigrant Status, with fee.

Spouses of E-2 workers in valid E-2 or E-2S status are considered employment authorized incident to status, except for spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are required to apply for employment authorization per 8 CFR 274a.12(c)(12).

DHS-issued evidence of such employment authorization, particularly that may be presented to employers for completion of Form I-9, Employment Eligibility Verification, include:
                    - An unexpired Form I-94 with a notation reflecting E-2S nonimmigrant status. As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with a new admission code for certain spouses of E-2 workers: E-2S. An unexpired Form I-94 reflecting this new code is acceptable as evidence of employment authorization under List C of Form I-9;
                    - An unexpired Form I-94 with a notation reflecting E-2 nonimmigrant status, together with a notice from USCIS regarding the new admission code. USCIS will send E spouses with a Form I-94 issued by USCIS before Jan. 30, 2022, that was notated with E-2 nonimmigrant status and who are employment authorized incident to status, a notice regarding the new admission code that, together with an unexpired Form I-94 reflecting E-2 nonimmigrant status, serves as evidence of employment authorization for such spouses under List C of Form I-9. For more information, see this  web alert ;
                    - An unexpired Employment Authorization Document (EAD). E spouses who are employment authorized incident to status are not required to request employment authorization by filing Form I-765, Application for Employment Authorization, but may still file Form I-765, with fee, in order to obtain an Employment Authorization Document (Form I-766 or EAD).  EADs are acceptable evidence of both identity and employment authorization under List A of Form I-9; or 
                    - A facially expired EAD with additional documentation to show the EAD is automatically extended (as discussed below).

Certain E spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet the following conditions:
                    - They timely and properly filed a renewal Form I-765, Application for Employment Authorization, based on the same E nonimmigrant status; and
                    - They have an unexpired Form I-94 showing their status as an E-2 or E-2S nonimmigrant.

Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. In May 2022, DHS published a temporary final rule creating 8 CFR 274.13(d)(5), temporarily increasing the automatic extension period to up to 540 days. The increased automatic extension period under 8 CFR 274a.13(d)(5) was available to eligible renewal applicants who had a timely and properly filed EAD renewal application pending during the approximately 18-month period beginning May 4, 2022, and ending on Oct. 26, 2023.  Increased automatic extensions under that May 2022 temporary final rule remain valid until their renewal application is approved or denied, or the up to 540-day period expires (counted from the expiration date of the employment authorization and/or their EAD), or the end date of the E-2/E-2S nonimmigrant status, whichever is earlier.

On April 8, 2024, DHS published a second temporary final rule temporarily increasing the automatic extension period to a total of up to 540 days for eligible renewal applicants. This second temporary final rule created 8 CFR 274.13(d)(6), which increases the automatic extension period to up to 540 days for renewal applicants eligible to receive an automatic extension who timely and properly filed an EAD renewal application on or after Oct. 27, 2023 and on or before Sept. 30, 2025, and whose applications are pending during the 18-month  period beginning April 8, 2024, and ending Sept. 30, 2025.

The automatic EAD extension under either temporary final rule will therefore continue until whichever comes first:
                    - The end date on the dependent spouse’s Form I-94 showing valid L-2 or L-2S nonimmigrant status, as applicable;
                    - The date we approve or deny their application to renew the previous EAD; or
                    - 540 days from the “Card Expires” date on the front of the previous EAD.

Additional information on the temporary increase of the automatic extension period is available on the Automatic Employment Authorization Document (EAD) Extension page.

Eligible E spouses may present the following evidence of the automatic EAD extension to employers for Form I-9 purposes:
                    - Form I-94 indicating the unexpired E-2 or E-2S nonimmigrant status;
                    - Form I-797C showing a timely-filed EAD renewal application (for Form I-765) and stating “Class requested” as “(a)(17)”; and
                    - The facially expired EAD issued under the same category, Category A17.

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, or the family members separately travel abroad and return to the United States within the new readmission period, 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 status and apply for an extension of stay before their own validity expires.

**Forms**
                    - Employment Based Forms

**Other USCIS Links**
                    - VIBE Program
                    - Work Authorization

**Department of State**
                    - Treaty Countries
                    - Electronic Visa Application Forms

04/05/2024

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