The E-2 Investor Visa To The U.S.

The E-2 Investor Visa To The U.S.

Ira S. Katz, The Katz Law Group P.C. 

The United States has entered into treaties with several countries including Israel and established the E-2 investor visa to allow businesspeople from those countries to work in the United States for a business in which people from their country have invested. (The authorization for this visa comes from the Immigration and Nationality Act atI.N.A.§ 101(a)(15)(E), 8 U.S.C. § 1101(a)(15)(E); the corresponding regulations are at8 C.F.R. § 214.2(e); 22 C.F.R. § 41.51.)

While there has been great anticipation since the signing of the treaty between Israel and the United States regarding the E-2 visa, as of the writing of this brief article, the E-2 visa has not as of yet been implemented for Israel.

Below is a general description of the E-2 visa and its applicability. Each treaty country differs in its applicable rules and implementation. 

Key Features of the E-2 Visa

Let’s review some of the pluses, minuses, and issues surrounding the E-2 visa:

• The treaty investor can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the visa holder or other citizens of the country of origin, so long as this country has a treaty with the U.S.
• While in the U.S., the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.
• Initial visas may last for up to five years, with unlimited extensions. The length of the visa depends upon the visa "reciprocity" agreement between the U.S. and the foreign country and upon the viability of the business (new companies receive shorter validity periods).
• Each time E visa holders (workers or family members) enter the U.S., they receive a period of stay of up to two years. They also may extend their stay while remaining in the U.S.
• Visas are available for an accompanying spouse and minor, unmarried children.
• The spouse, but not children, may apply for a work permit once physically present in the U.S.
• 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.
• 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.

Like theE-1 visa, some people call the E-2 the next best thing to U.S. permanent residence, because it is possible to obtain via self-employment, and it comes with an unlimited number of extensions. Also, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.

General Qualifications of the Employee of a Treaty Investor

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

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:   

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 or employee.  These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.

E-2 For Israel

In June 2012, President Obama signed into law legislation that adds Israel to the list of countries eligible for E-2 treaty investor visas. Unfortunately, Israeli nationals remain ineligible for E-2 status because of delays in implementing the new law.

The legislation is conditioned upon visa reciprocity. Accordingly, once the new law was sent to the U.S. State Department for implementation, teams from the United States and Israel began 

discussing the terms and conditions that E-2 status will provide to Israeli investors in the U.S. and examining whether Israel will provide similar terms and conditions for American investors in Israel. These discussions were complicated by the fact that Israeli immigration law does not currently provide for a visa category that parallels the E-2 visa. Indeed, Israel has only one nonimmigrant work visa category, with visas issued for one-year validity periods and with an absolute maximum stay in the country of five years. 

Moreover, the options under Israeli immigration law for derivative visas on behalf of accompanying family members are extremely limited with no provision for a benefit resembling the E-2’s Employment Authorization Document (EAD) for an accompanying spouse. The U.S. State Department’s Bureau of Consular Affairs, estimated that implementation of the Israeli E-2 law could take approximately six months.

Note: The Rules implementing the new E-2 Visa Treaty between the United States and Israel have not been completed. Therefore, when implemented, the E-2 visa from Israel may vary from the general information contained in this article about E-2 visas.

Additionally, anyone seeking an E-2 visa is cautioned not rely upon this article as being applicable to their particular situation or to have been updated since its publication. Please speak with an attorney specializing in immigration law regarding your particular case or issue.  

The Katz Law Group P.C., has assisted clients with their E-2 requirements and stands ready to assist E-2 visa applicants from Israel with E-2 visas, when implemented, as well as with all of their business, family and other U.S. immigration issues.  

THE KATZ LAW GROUP, P.C.

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