An E2 Treaty Visa is a nonimmigrant visa that allows nationals from E2 treaty countries to operate or work for a business within the United States. An E-2 treaty 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 needs to make a substantial investment in a U.S. enterprise or business. A substantial investment for an E2 Visa can be made in your own business, invest in a franchise, or through the purchase 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 Visa Transfer to Another Company and 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 ask United 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 include a merger, acquisition, or the closure of a business line or location. If there is a “substantive change” to your E2 business, you have to file a new Form I-129 for both yourself 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 would opt to transfer from another visa type to E-2 visa status. The E-2 Treaty Investor Visa does 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 Visa can be extended indefinitely as long as you still meet the requirements.
E-2 Visa Transfer Process
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. business necessitates the filing of a new I-129 form. A new 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 E2 Visa.
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 transfer done 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 E2 Visa might be granted for a longer period*, and 2) Your E2 Visa will 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 the reciprocity 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.
E2 Visa Transfer to E2 company’s Parent or Subsidiary
If you are in the US on an E2 employee visa you can work for your employer’s parent company or subsidiary without 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 new employment requires executive, supervisory, or essential skills.
- The terms and conditions of the employment which is the basis of the E2 status didn’t change.
E-2 Visa to H-1B Visa Status
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 circumstances transferring to an H1B visa or L1 visa may be a possibility.
There is no official process to automatically transfer from an E2 Visa status to a H1B. You would need to apply for an entirely new H-1B Visa. You need to make sure that you meet all of the qualification requirements 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 and file a Form I-129 petition on your behalf. A potential H1-B employer will also need to secure a Labor Condition Application for you.
After and H1-B petition 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 visa limit.
E2 Visa Transfer to an Unrelated Employer or Business
Any substantial change that affects the treaty investor or employee’s previously approved relationship with the E2 business must be approved by the USCIS.
An E2 employee cannot work for a business that is not related to their original E-2 employer and remain in an E2 status without proper government approval. If you want to transfer to a completely unrelated company, the new company must apply for the E2 visa for 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, Davies & Associates has immigration attornies who can give you advice regarding your transfer and make sure that you still retain your current E-2 nonimmigrant 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 an E-2 Visa Cost is the investment, then you might want to consider the EB-5 Visa. This visa allows 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 visa requires 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 visa also 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 E2 Visa
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 E2 visa for your application process, you may also check our article here.
Required Documents for E2 Transfer
The E2 Visa process necessarily 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 documents you must prepare the following:
- Original and copy of your passport;
- Original and copy of your Alien Registration Card;
- A passport-sized photo;
- A copy of your contract with your employer;
- A copy of the E-2 business’s license;
- Employment certificate;
- Criminal background check;
- Proof of your income from the previous E-2 employer; and
E2 Visa Restrictions for 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 circumstances both the employee and employer must be present in the United States.
