AnE2Treaty Visais a nonimmigrant visathat allows nationals from E2treaty countriesto operate or work for a business within the United States.An E-2treaty country is defined as a country that has a signed treaty with the United States.A list of E-2 treaty countries is available here.
To qualify for the E2 visa an investor needsto make a substantial investmentinaU.S. enterprise or business.A substantial investment for anE2Visacan be made inyourown business, investin a franchise, orthrough thepurchase an existing business.In addition to an E-2 investor visa, an E-2 specialist worker visa is also available to persons holding the same nationality as the business owner.
The United States understands that sometimes things change. Sometimes you may need to change your E-2 business or make substantial changes to your E-2 business.
E-2 VisaTransferto Another Companyand Business Changes
It is possible to change your business while on an E2 visa or “move” to a completely new E-2 business.
Changing to a completely new E-2 business requires you to file a new I-129 for with United States Citizenship and Immigration Services (“USCIS”).
What where there are substantial changes to your exiting E2 business?
Your immigration lawyer will need to decide whether the changes to your E-2 business are “substantive” or not. If the lawyer feels this decision is unclear or “grey” they may askUnited States Citizenship and Immigration Services (USCIS)to determine if the changes to your E-2 business are “substantial” or not.
If the changes are not “substantial” then you can continue working on your current E-2 Visa.
USCIS must approve any“substantive change”to the E-2 business. A “substantive change” may includea merger, acquisition, orthe closure of a business line or location.If there is a “substantive change” to your E2 business, you have to filea new Form I-129for bothyourself and other effected employees. The filing must also include any evidence that shows you still qualify for an E-2 status.
Transferring from Another Visa Type to an E-2 Visa
There may be a variety of reasons why you wouldopt to transfer from another visa type to E-2 visa status. The E-2 Treaty Investor Visadoes have its advantages.Commonly qualified clients transfer from an L-1A visa to an E-2 visa. Unlike with an L-1 visa or and H1B visa, you are not required to have a certain level of education or an employer sponsorship to obtain the visa. Moreover, the E-2 Visacan be extended indefinitely as long as you still meet the requirements.
E-2 VisaTransferProcess
Any substantial change, whether it be a change in the employer’s basic characteristics or an employee’s previously approved relationship with the U.S. businessnecessitates the filing of a new I-129 form.Anew Form I-129 and E supplement must be filed with the USCIS together with a request for an extension of stay. Moreover, the petition must show that the new employer meets the requirements of an E2Visa.
There are times that you may also opt for consular processing at the U.S. Embassy or Consulate in your home country to get the transferdone even if you’re already in the United States. If you go with this option, there are two main benefits you may receive: 1) Your E2Visamightbe granted for a longer period*, and 2) Your E2Visawill not expire once you leave the country but will be renewed when you re-enter the U.S.
* All E-2 visas are subject to the limitations in thereciprocity table.
However, there are times that people will prefer not to leave the U.S. or in a rush to transfer, in which, filing with the USCIS may be more convenient.
E2VisaTransferto E2company’s Parent or Subsidiary
If youare in the US onan E2employeevisayou can workforyouremployer’s parent company or subsidiarywithout any change to your E2 visa. To make this change you need to meet a few conditions:
- A qualified corporate relationship must exist between your employers.
- Your newemployment requires executive, supervisory, or essential skills.
- The terms and conditions of the employment which is the basis of the E2status didn’t change.
E-2 Visato H-1B VisaStatus
While the E2 visa is a much more flexible visa of potentially infinite validity there may be times where business changes render an E2 visa ineligible for E2 Visa status. For example, if the E-2 business is acquired by a U.S. entity then all E2 visa validity will likely end. In these circ*mstances transferring to an H1B visa or L1 visa may be a possibility.
There isno official processto automaticallytransferfrom an E2Visastatusto a H1B. You would need to apply foran entirely newH-1B Visa.Youneed to make sure that you meetall ofthe qualificationrequirements for H1B:
- You have at least a bachelor’s degree in the field where you’ll work. If you have relevant work experience, it can be used as a substitute. A year of study in the university is equal to 3 years of work experience, generally.
- Your employment must be considered a specialty occupation according to the standards of USCIS.
Once you qualify, you must have an employer to sponsor you because andfileaForm I-129 petition on your behalf.A potential H1-Bemployer will also need to secure a Labor Condition Application for you.
Afterand H1-Bpetition is filed, you will need to undergo a lottery for random selection due to the H-1B’s popularity. If you possess a master’s degree, you have a better chance of getting selected. Moreover, if you are working for a non-profit organization, an institute of higher education, or a government research centre, you can be considered exempt from the H-1B visalimit.
E2VisaTransfertoanUnrelatedEmployer or Business
Anysubstantial change that affects the treaty investor or employee’s previously approved relationship with theE2businessmust be approved by the USCIS.
AnE2employeecannot work for a business that is not related to their original E-2 employer andremain in an E2status without proper government approval. If you want to transferto a completely unrelated company, the new company must apply for the E2visafor you.
The same goes for the investor who wants to change the activity or nature of their company.
If you want to make substantial changes,hasimmigration attornieswho can give you advice regarding your transferand make sure that you still retain your currentE-2nonimmigrant status.
Adjusting Status to Green Card
No non-immigrant visa, including the E-2 visa, provides a direct road towards a lawful permanent residency. You will need to apply for an immigrant visa. Immigrant visas include:
- EB-5 Visa– Since one of the parts of anE-2 VisaCostis the investment, then you might want to consider the EB-5 Visa. This visaallows you to obtain a green card when you make a minimum investment depending on the area where you’ll make your investment.
- EB-2 and EB-2 NIW– This visarequires an employer sponsorship and a PERM Labor Certification obtained by the employer on your behalf. If you’re planning to apply, however, with a National Interest Waiver (NIW) you may bypass such requirements.
- EB1-C The EB1-c visa is for international managers and executives.
- EB-3– This visaalso requires an employer sponsorship and a PERM Labor Certification for you to be qualified. It’s available for skilled workers, professionals, and other workers possessing the necessary qualifications.
Dual Intent in E2Visa
Dual intent is an important doctrine in US immigration law. For certain visas the visa applicant is permitted to hold a long-term intent to remain in the United States, these are the visas of “dual intent”.
It is unlawful to enter the United States with the intention of remaining permanently in the United States using a non-immigrant visa unless it is a visa of “dual intent”.
The E2 visa is unique in that it is neither a visa of “dual intent”, neither is the E2 visa not a visa of dual intent.
All E-2 visa applications are supported by a statement that the applicant intends to depart the United States when the visa comes to an end. As an E2 visa can be renewed as long as the E2 business exists, this time period is never clear.
If you’re considering checking the processing time of an E2visafor your application process, you may also check our articlehere.
Required Documents for E2Transfer
TheE2Visaprocessnecessarily includes the submission of the proper and relevant documents,the same is true where there is a substantial change to the US E-2 business. Amongst other documentsyou must prepare the following:
- Original and copy of your passport;
- Original and copy of your Alien Registration Card;
- Apassport-sized photo;
- A copy of your contract with your employer;
- A copy ofthe E-2business’slicense;
- Employment certificate;
- Criminal background check;
- Proof of your incomefrom the previousE-2employer; and
E2VisaRestrictionsfor E-2 Employees
An E-2 employee must have the same nationality as the E2 business. For this purpose the E-2 business is deemed to have the nationality of its owners. When the E-2 business is jointly owned by persons of differencing nationality the E-2 business is deemed to have two nationalities.
Where an owner of an E-2 business is a US dual national the business is deemed to be a US business for E-2 visa purposes.
A special rule applies where the owner of the US is also an E-2 visa holder. Under these circ*mstances both the employee and employer must be present in the United States.
