International students have been in the news in the last few months due to the COVID-19 Pandemic and online courses.
There was even an unsettling moment when many students were sent notifications by the Immigration and Customs Enforcement (ICE) regarding a July 6, 2020, directive that if the students were taking full-time online courses, they were not in compliance with their F-1 nonimmigrant student visa. ICE informed the students that they needed to depart the United States as soon as possible.
On July 15, 2020, ICE rescinded the July 6, 2020, directive, and announced that they will resume applying the March 2020, ICE guidelines that permit F-1 students to attend online courses to maintain their status.
The announcement came as a result of a lawsuit filed by Harvard University and the Massachusetts Institute of Technology in Federal District court. The lawsuit was against the restrictive ICE policy. Several other lawsuits against the ICE restrictions were also filed by the State of New York, the University of California, and a coalition of U.S. states.
This is good news for F-1 students, however, future restrictions on F-1 students cannot be ruled out. Therefore, if you are close to graduation or completing your OPT (Optional Practical Training) and are interested in continuing to stay in the United States, one option that you can consider is the E-2, Treaty Investor Visa.
An advantage to the E-2 treaty investor’s visa is that there is no cap for issuing visas. If USCIS approves the E-2 visa application, one can start working for their business immediately or work for an E-2 treaty investor company.
The most important first step is to do critical research to find the right business that interests you and fits your needs. The E-2 business can be an
existing business or a new business. There is no minimum amount of investment as long as the requirements are met. Also, you need to determine whether you have the financial resources to invest in a business. It is advisable to start this process several months before graduating or completing your OPT.
Requirements for an E-2 Visa
- You must be a national of a country with which the United States maintains a treaty of commerce and navigation. If you are a business, the nationality is determined by the nationality of the individual owners of that business.
To find out whether you are a national of an E-2 treaty country, go to the Department of State website: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
- You must apply for the E-2 visa mainly to develop and direct the business. You must show at least 50% ownership of the business or have operational control through a managerial position or other corporate structure.
- Your investment must be more than a marginal one solely for earning a living. You must possess and control the capital assets and funds invested which were legitimately acquired. Examples are savings, gift, inheritance, etc. and these funds do not have to originate from outside of the United States. However, the inheritance of a business does not qualify as an investment.
If you are in the process of investing, the funds, or assets you will invest must be committed to the investment, and the commitment must be real and irrevocable. Moreover, you must be close to the stage of starting the business.
- You are in a position to “develop and direct” the enterprise.
- If you are an employee of the enterprise, it must be as an executive, supervisor, or essentially skilled employee. Furthermore, the employer must meet the E-2 nationality requirement, the employer and employee must have the same nationality, and the employer must maintain their E-2 visa status.
- You must intend to depart the United States when the E-2 status terminates. Once approved you will be allowed to stay a maximum initial stay of two (2) years. You can request an extension of stay in increments of up to two (2) years each. There is no limit to the number of extensions you can request or the USCIS can grant.
- Your spouses and unmarried children under 21 years old may stay with you whether you are an investor or employee. The nationalities of your dependents do not have to be the same nationality as yourself.
Spouses may apply for work authorization by filing Form I-765 with the fee. If approved, there is no specific restriction as to where the E-2 spouse may work.
How Do You Apply for an E-2 Visa?
- Since you are in the United States, you apply for an E-2 visa by submitting Form I-129, Petition for a Nonimmigrant Worker.
- Supporting Documents.
Initial Evidence
- Copies of your last 2 pay stubs, Form W-2, Internal Revenue Service (IRS) transcripts of your federal individual income tax return for the three most recent tax years, and other relevant evidence. You can get copies of your IRS transcripts at:
https://www.irs.gov/uac/newsroom/request-a-transcript-or-copy-of-a-prior-year-tax-return
- Your I-797, Notice of Approval, of your H1B status
- I-94, Arrival/Departure Record, from the Customs and Border Patrol; note if you do not have the hard copy of your I-94, you can get a copy online at https://www.cbp.gov/travel/international-visitors/i-94
- All the pages of your current passport.
Documents supporting you qualify for the E-2 Visa[1]
- Ownership and Nationality of the E-2 treaty investor. Lists of investors with current status and nationality, stock certificates, certificate of ownership issued by the commercial section of a foreign embassy, and reports from a certified personal accountant;
- Substantial investment. Copies of partnership agreements (with a statement on proportionate ownership), articles of incorporation, payments for the rental of business premises or office equipment, business licenses, stock certificates, office inventories (goods and equipment purchased for the business), insurance appraisals, annual reports, net worth statements from certified profession accountants, advertising invoices, business bank accounts containing funds for routine operations, and funds held in escrow;
- For E-2 employees only: Certificates, diplomas or transcripts, letters from employers describing job titles, duties, operators’ manuals, and the required level of education and knowledge.
- Family members:
If your dependents are already in the United States, they must apply using Form I-539, Application to Change/Extend Nonimmigrant Status, with the fee, $370.00. The Form I-539 may be submitted with your I-129 application packet.
How much is the filing fee?
ALERT: On July 31, 2020, the Department of Homeland Security announced a final rule that will adjust the USCIS fees. The rule becomes effective October. 2, 2020.
The filing fee is $460.00 payable to “U.S. Department of Homeland Security.”
Premium Processing: If you are requesting Premium Processing Services for Form I-129, you must also file Form I-907, Request for Premium Processing Services with the applicable fee. With Premium Processing USCIS guarantees processing within 15 calendar days or they will refund the premium processing service fee and will continue with expedited processing. The current fee for Premium Processing is $1,440.00.
Where to file the Form I-129 for E-2 Visa Applicants
U.S. Postal Service:
USCIS California Service Center
Attn: I-129 E-2
P.O. Box 10129
Laguna Niguel, CA 92607-1012
FedEx, UPS, and DHL deliveries:
USCIS California Service Center
Attn: I-129 E-2
24000 Avila Road
2nd Floor, Room 2312
Laguna Niguel, CA 92677
The E-2 visa application process, especially the supporting documents, can be complex and overwhelming. The goal is to submit the E-2 application packet as complete as possible, within your 60-day grace period. Therefore, you may want to consider retaining a qualified immigration attorney to represent you.
[1] This section is taken from the USCIS I-129 Instructions for E-2 Visa.