E-2 Investor Treaty Approval
Posted Aug 29, 2003

As addressed in our Overview article, E Visas for Traders and Investors, posted on MurthyDotCom October 20, 2000, an individual may petition for E-2 nonimmigrant status if coming to the United States from the individual's home country pursuant to a Treaty of Commerce and Navigation. The individual must demonstrate that the purpose for coming to the U.S. is solely to develop and direct the operation of an enterprise in which s/he is either in the process of, or has already, invested substantial capital. An employee of the investor may also obtain an E-2 nonimmigrant visa. To qualify, the employee must demonstrate that s/he will fill a position within the U.S. enterprise that is either executive or managerial, or a non-supervisory role that requires special qualifications of an essential employee. This is similar in nature to the L-1.

As an example of this latter case, our Office received a recent E-2 approval, in which the U.S. company was a major global corporation, organized under the laws of the State of Delaware. The qualifying investor was a South Korean company. The petition was filed according to The United States’ Treaty of Friendship, Commerce and Navigation (Article II) with South Korea, entered into on November 7, 1957. The investor in this particular case was the sole incorporator and shareholder of the U.S. petitioner. The petition for E-2 nonimmigrant status was filed on behalf of the investor’s essential employee, who held the job title of Director, Strategic Projects.

Nationality and Substantiality Test

A petition for E-2 nonimmigrant status must include documentation that the qualifying investor is a national of the country with which the U.S. has entered into a treaty of commerce and navigation. It must also satisfy the substantial nature of the investment, as contrasted with a marginal investment. The substantiality of the investment is viewed in light of several factors, among them: (a) the amount invested and the total startup costs for that specific petitioner or a company of its type, and (b) the likelihood that the investment will support future development and direction of the U.S. enterprise.

In our example, the filing included proof that the company was headquartered in a treaty country, South Korea. The U.S. enterprise’s costs of doing business were documented through historical financial records of the company. The documents specified the income for all of the U.S. enterprise's projects, and the continued and ongoing investment of the foreign national investor. Proof of the amount and source of the startup funds provided by the investor were also included, as were the tax filings over the past four years.
 
Illustrating the substantiality of the investment in the approved E-2 petition was documentation including: (a) the annual report of the investor; (b) a copy of the Minutes of the Sole Shareholder meeting; and (c) a copy of the Research and Development Agreement between the investor and the U.S. petitioner, which represented a multi-million dollar investment.

Essential Employee

In addition to demonstrating the qualifying investment, the Petition for E-2 nonimmigrant status also evidenced that the employee beneficiary was, indeed, “essential” to the continued success of the petitioner. The support for this required element was the employer's supporting letter, setting forth his duties, buttressed by internal documents, including an organizational chart showing his key role within the company. Finally, we heavily documented the credentials of the beneficiary to demonstrate his extensive knowledge of the petitioner’s operations and products, as well as his experience with both the investor and the petitioner. These items, in their totality, sufficiently demonstrated that the beneficiary was an essential employee. Accordingly, the beneficiary’s petition for E-2 nonimmigrant status was approved.

Conclusion

The E visa category is often overlooked as an excellent option for those persons who are from treaty trader countries. There are quite a number of qualifying countries, on six continents. While India is not one of the countries, many European countries qualify, as do some African countries, Australia, Canada, Korea, Pakistan, and many others. As illustrated above, this category is possible, if one has the appropriate documentation to prove each step of the case.