What is the E2 Visa?
The E2 Visa is a non-immigrant classification that allows a national of a treaty country to work in the United States based on an investment he or she will be controlling. The purpose of the E2 visa is to allow nationals of a treaty country to be admitted into the United States for the purpose of developing and directing the operations of an enterprise in which he or she has invested, or is in the process of investing.
Not everyone can apply for an E2 visa and the investment must meet certain criteria. The individual must be from a country with a qualifying treaty with the USA. The investment must be of sufficient size to ensure the successful operation of the enterprise, and must be substantial enough to ensure the investor’s commitment of capital, and create an expectation of earning a significant return on the investment. The investor must possess control of the assets to be invested. There must be a need for the services of the investor within the enterprise which he or she will be directing and developing. The business must be a real and operating commercial enterprise and must meet the foreign and domestic commodity demand. There must be more than marginal activity involved in the business, and the business must be carried on and directed by the investor, not someone else.
E2 visa holders are the only category of non-immigrant visas with work authorization provisions that make a connection between the visa holder and the investment enterprise . So to find out whether or not you can work for another company while on an E2 visa, the nature of the "connection" between the investment business and the E2 visa holder must be constructed properly. Because the regulations governing the E2 visa do not mention carry-on enterprise by a visa holder and the U.S. Citizenship and Immigration Services (USCIS) is very strict on interpretation of the E2 laws, many immigration attorneys warn against carrying on another enterprise while under the E2 visa, even if it does not appear to violate the non-immigrant status requirements.
Under the terms and conditions of the E2 laws, the obligation to maintain status begins on the date of entry into the United States and ends at the conclusion of the period of authorized status. The issuance of an E2 visa is not an invitation to the USA therefore, an issued visa does not guarantee entry into the United States. The Department of State has advised that the consular officer overseas retains the authority to determine the suitability of a traveler for a U.S. visa at any time. When entering the USA, admission is granted by the officer at a U.S. port of entry who will make an admission determination. E2 visas are in theory valid for up to two years, however, holders are frequently asked to return abroad after a year to request an extension of their status.
Employment Restrictions for E2 Visa Holders
For the most part, E2 visa holders are limited in their ability to work for US companies other than the one in which he or she invested. This employment restriction is generally understood by E2 visa holders. That said, it comes as a surprise to some that there are also restrictions on how much an investor may work for the company he or she owns. This section reviews both sets of limitations.
Employment Restrictions with Other Companies
This limitation is governed by Section 214(b) of the Immigration and Nationality Act which provides:
No alien admitted under section 101 (a) (15) (E) or spouse or child of any such alien shall be engaged in a profession or occupation other than that for which authorized under such section 101 (a) (15) (E) unless authorized by the Attorney General under such regulations as the Attorney General may prescribe [now under the auspices of the Homeland Security Act, the Secretary of Homeland Security].
It is not uncommon for E2 visa holders to receive job offers from other US companies trying to woo them away from their own startups and investments, or catch a "lucky break" when a US firm proposes a US-based job rather than requiring them to move back home following their E2 expiration.
However, this immigration restriction portends potential immigration complications, since the E2 visa holder, having been based in the US, is not eligible for other nonimmigrant visas to begin with. Those who violate this restriction may be subject to inadmissibility which can result in criminal charges depending on the severity of the offense.
Work Restrictions for Own Company
Financial restrictions exist on how much an E2 visa holder may take in salary or take a distribution from the company without triggering grounds for CIN, or "constructive intent." Even if CIN regulations did not exist, the income earned by the foreign investor is the sole basis for assessing his or her residency in the US and eligibility for the treaty investor’s visa, so significant deviations in one’s income could also be considered a red flag.
As a general guideline, the investor should not spend more than 25% of his or her gross salary on personal expenses or anything that benefits the investor individually. This means that the majority of the remaining income should be reinvested in the company of the E2 visa holder.
In cases where the investor cannot avoid a deviation in income, it should be minimal; the difference should not exceed more than 5% of the E2 visa holder’s income. To avoid problems down the road, the investor should also consult an accountant or inscribe a valid reason for the deviation.
Special Cases and Exceptions
Exceptions may also be made for family members of the E-2 visa holder. While an E-2 employee spouse may not apply separately for an E-2 visa for employment purposes, qualifying for an E-2 investor visa on the basis of owning a substantial interest in a business venture may qualify the E-2 spouse for an E-2 dependent visa. E-2 visas for spouses of E-2 workers are not subject to the U.S. two-year home residency requirement. Conditional upon E-2 status, spouses of E-2 visa holders may also apply for work permission in the form of an Employment Authorization Document (EAD). If the business venture is owned by the applicant’s family member who is a U.S. citizen or lawful permanent resident, she may be eligible for sponsorship for a green card pursuant to the EB-5 visa program for which E-2 workers may qualify.
There is also an exception for E-2s working for non-profit organizations. You can work for a non-profit organization as long as the profits from that organization go back into the parent company.
Case Study:
To illustrate how the above exceptions to the E-2 visa requirements may be made, consider the following common scenario. If you have an E-2 visa, you may own an educational consulting company and your spouse has been working for it as a vice president in charge of business development in Atlanta, Georgia. She now wants to open another branch of the company in Seattle, Washington. Therefore, your spouse would like to take the position of managing the new branch. As someone who has worked for the company long enough to be considered senior management, a move to the new branch office would not constitute "seeking an opportunity to work elsewhere." Thus, she may be able to do so without filing another E-2 petition, just by moving over and notifying USCIS of her new position.
Navigating the Application Process for Employment
If you are offered a new position with another E-2 company, you may be eligible for work authorization consistent with your E-2 visa status in order to work for this new company. But you must be careful how you proceed, as the E-2 is not an immigrant visa, and the employer is not a permanent resident. E-2 status does not carry any fight of first refusal like employment-based immigrant visas. No E-2 business will act as sponsor or out into the green card but only into their company’s Approvable E-2 Visa. You must file a petition with supporting documentation with USCIS. The petition requires: If the petition is approved , you will be issued an EAD. In most cases, work authorization is granted for two years. This does not include the 4 months of work authorization automatically granted as an E-2 dependent of either Spouse or Child. There is a restriction that requires the individual to act either as an executive or as a manager, or in a special capacity in the new company.
Penalties for Unlawful Employment
While the actual unauthorized hire may not have a devastating impact on the company, the immigration ramifications can be extremely severe. E-2 visa holders who are caught working for an unapproved company could very well find themselves deemed out of status, a difficult situation for which to remedy.
The standard is that the subject must be shown to have violated the nonimmigrant provisions of the law. A violation of the terms of E-2 status is subject to the 30/60-day bar. There is a possibility of waiving ineligibility in certain circumstances.
Any E-2 dependant will also be subject to the same inadmissibility provisions, unless a waiver is applicable.
At the very least, an unauthorized job can negatively impact a person’s immigration future and create a ripple effect from which the company will need to recover.
The E2 Visa in the Future
While it’s too much to expect that all of those pending changes will eventually be implemented, it is more than reasonable to expect that at least some of them will be, and that the US Citizenship and Immigration Services (USCIS) will continue to make it easier for employers to hire temporary talent to help U . S. businesses grow and prosper in the very near future. Whether that will mean more opportunities for E2 visa holders to work for other companies remains to be seen and will largely depend on the political climate in the weeks and months ahead.