E-1 and E-2 visas are available to citizens of foreign countries that have a treaty of commerce and navigation, or a bilateral investment treaty providing for nonimmigrant entries, with the United States.
The purpose of these visas is to provide individuals with an opportunity to come to the U.S. to carry on substantial trade. This includes trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act.
Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal applicant. The spouse of an E visa holder may apply employment authorization. Dependent children of an E visa holder are not authorized to work in the United States, but may attend school without changing status.
Treaty Investor (E-2) Visa
The Treaty Investor (E-2) visa is for an applicant whose purpose for entering the U.S. is solely to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing, a substantial amount of capital in a bona fide enterprise. To determine whether the investment is “substantial” the Department of State employs a relative- proportionality test. Generally speaking, the lower the cost of the enterprise, the higher, proportionally, the investment must be to be considered substantial. For example, if the total investment is $200,000 or less, the E-2 investor should provide 100% of the investment.
The applicant’s funds must be “at risk.” This means that the capital must be subjected to partial or total loss if investment fortunes reverse. Applicants, however, are able to place funds in escrow pending the approval of the E classification provided that there is a legal mechanism that irrevocably commits funds if the application is approved.