Many entrepreneurs learn about the E-2 treaty investor visa while researching ways to move a business to the United States. It often comes up in conversations, online forums, and business circles because it appears to offer a practical path to live in the U.S. while running a company.
As entrepreneurs look more closely, they learn that the E-2 visa is not based only on business plans or investment levels. Eligibility depends on nationality. Under U.S. law, the E-2 classification is available only to nationals of countries that have a qualifying treaty of commerce and navigation with the United States. The U.S. enterprise must also have the nationality of the treaty country, meaning at least 50 percent of the business must be owned by nationals of that treaty country.
This rule affects entrepreneurs from countries such as India and the People’s Republic of China, where no qualifying E-2 treaty exists. In these cases, the issue is not the strength of the business or the individual’s experience. It is whether a treaty exists between the two governments.
The E-2 visa is frequently described in terms of investment and business activity, but those factors are considered only after the treaty requirement is met. Without a qualifying treaty, the visa is not an option, regardless of preparation or intent.
For entrepreneurs from non-treaty countries, this raises a natural question: what alternatives are available when the E-2 visa is not? At this stage, the focus turns to other visa categories that may be available through different qualifying bases.
E-2 Visa through a treaty national spouse
U.S. regulations allow the spouse and unmarried children under 21 of an E-2 principal investor to apply for E-2 dependent status.
In this structure, the spouse who is a national of a treaty country is the E-2 principal applicant. The other spouse applies as a dependent. This option does not remove the treaty nationality requirement. It only determines which spouse qualifies as the principal investor.
E-2 dependent spouses are authorized to work in the United States incident to status under U.S. Citizenship and Immigration Services policy effective November 12, 2021.
EB-5 immigrant investor visa
The EB-5 immigrant investor visa is not based on treaty nationality. It is available to investors of any nationality who meet statutory investment and job creation requirements.
Under U.S. law, EB-5 eligibility requires an investment in a commercial enterprise and the creation of at least 10 full-time jobs for qualifying U.S. workers. The investment amounts are $1,050,000 for standard investments or $800,000 for qualifying Targeted Employment Area or infrastructure investments. These requirements are defined by statute and implemented through U.S. Citizenship and Immigration Services regulations and policy guidance.
The EB-5 visa is an immigrant visa category and leads to lawful permanent residence rather than temporary stay.
L-1 intracompany transferee visa
The L-1 visa allows certain executives, managers, or employees with specialized knowledge to transfer from a foreign company to a related U.S. company.
Nationality is not a requirement for L-1 classification. Eligibility depends on the qualifying relationship between the foreign and U.S. entities and the applicant’s role within the organization. The applicant must have been employed abroad in a qualifying role for at least one continuous year within the three years preceding the L-1 petition, and the U.S. and foreign entities must have a qualifying relationship.
For entrepreneurs who already operate a business abroad and are expanding operations to the United States, this classification may be relevant if regulatory requirements are met.
Conclusion
For entrepreneurs from non-treaty countries, the E-2 visa is not available unless the treaty nationality requirement is met. There is no alternative way to bypass this rule within the E-2 category itself. Instead, entrepreneurs must evaluate other lawful options based on their specific circumstances, such as structuring an E-2 through a treaty-national spouse or pursuing visa classifications that do not rely on treaty nationality, including the EB-5 or L-1 visas.