Updated: October 16, 2018
For years the E-2 visa has been thought of as a way for people to open up a small business in the US and, subject to periodic renewals of the visa, live there indefinitely. Certainly that is one use of the E-2, and the urban myth that an E-2 allows a person to live in the US in semi-retirement is so widespread that the Embassy in London felt it necessary to refute the idea on its website:
The Treaty Trader and Treaty Investor visas [E-1 and E-2 visas, respectively] were established to facilitate and enhance economic interaction between the United States and other countries. They were not intended to serve as a means for foreigners to retire or merely reside in the United States.
The focus on the E-2 as a vehicle for small businesses has obscured the fact that the E-2 is also extremely useful for larger businesses as well. And contrary to widespread belief, E-2 employee visa holders can transition to lawful permanent resident/‘green card’ status just as easily as persons on other visas, as long as they meet the requirements for the labor certification-avoiding route known as the EB-1-3. (See our website article Multinational Executives and Managers – EB-1-3.)
If a business in the US (1) is at least 50% owned by UK citizens living in the UK , tracing back through intermediate levels of ownership if necessary to get back to individual owners, (2) has significant assets located in the US, and (3) is a real, operating business, the E-2 option should be considered. A start-up business can also qualify for E-2 registration if a ‘substantial investment’ in the business has already been made; there are some restrictions as to the expenditures that can be counted toward the investment.
Once a US company is registered for E-2 purposes as a ‘treaty investor enterprise,’ it can easily and quickly sponsor UK citizens for employment; there is no need for a petition to the USCIS with a filing fee of $960 (for the L) and the optional Premium Processing Service fee of $1225. Once the registration is in place the E-2 visa applicant applies directly to the Embassy in London for his/her visa, paying the $205 application fee and, if successful, a $105 issuance fee. The quick turnaround and consistent adjudication standards at the Embassy as opposed to the widely varying outcomes at USCIS Service Centers mean that the E-2 is a flexible and reliable tool that can be used by businesses to quickly staff their US offices or supplement their US workforce in case of a surge in demand or even just the illness or unexpected departure of a key US employee.
The prospective E-2 visa applicant does not need to have been employed by a related company outside the US for one year as does an L-1 applicant. All that is necessary is that the applicant (1) is a UK citizen living in the UK, who (2) will be working in the US either as an executive/supervisor or as a person with ‘specialized skills essential to the efficient operation of the US enterprise,’ and (3) is otherwise eligible for a visa (no disqualifying criminal convictions, for example.) Like the L-2 spouses of L-1 visa holders, the spouses of E-2 visa holders (who, rather confusingly, also have E-2 visas) are entitled to apply for unrestricted work authorization in the US. Unlike the L-1 visa, which puts a cap of five or seven years on the US stays of specialized knowledge or managerial/executive employees, respectively, the E-2 visa can be renewed an indefinite number of times, subject only to the visa applicant continuing to meet the qualifications and the treaty investor enterprise extending its E-2 registration with the Embassy.
While registration of a US company as an E-1 ‘treaty trader enterprise’ has different requirements from the E-2 ‘treaty investor enterprise’ registration, prospective E-1 employees and accompanying family members enjoy the same relatively quick and easy application process as do E-2 applicants and their families. For a discussion of the differences between the E-1 and E-2, see our article Treaty Traders (E-1) and Treaty Investors (E-2).
In summary: For qualifying businesses an E-2 registration offers an immigration option that is faster, cheaper, longer lasting and more reliable than an L-1. What’s not to like?