Services

E VISAS: TRADERS AND INVESTORS VISAS

Types of E Visas

• E-1: Treaty Trader Visa
• E-2: Investor Visa

E-1: Treaty Trader Visa

OVERVIEW

The E-1 Treaty Trader visa category is one that allows certain foreign nationals to work temporarily in the U.S. in order to carry on substantial trade, including trade in services or technology, between the United States and the foreign country of which he/she is a national. In many cases, an E-1 visa can be granted to an individual who is an employee of a treaty trader if he/she holds the same nationality as the foreign employer and seeks admission to the U.S. to engage in duties that require special qualifications (either executive, managerial, supervisory or “essential” skills) essential to the operation of the enterprise. A foreign national may also qualify for E-1 status if he or she intends to develop and direct the operations of an enterprise in which he or she has invested, or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital.

E-1 visa holders are initially granted a period of admission for two (2) years with an unlimited number of two-year extensions of status. There is no numerical cap on years and it is possible to remain in Treaty Trader status for many years. The treaty trader must always be prepared to establish to the consular officer that he intends to return abroad upon completion of his venture and will have his status cancelled if he is unable to do so.

SPECIFIC REQUIREMENTS FOR E-1 VISA

The E-1 Treaty Trader Must, Whether an Individual or Business or Individual Employed by That Individual or Business, Possess the Nationality of Country with Whom the United States Maintains a Treaty of Commerce and Navigation.

At Least 50% of the U.S. Entity Must Be Owned by Non-U.S. Resident Nationals of The Treaty Country. The nationality of the company’s stock holders is significant. For instance, if a business owns another business, then the nationality of the business’ ownership must be mapped back to the nationalities of the corporate shareholders. In addition, the country of incorporation is not important with regard to satisfying the shareholders’ nationality requirements for the E-1 visa.

Persons Seeking E-1 Status Must Be Engaged in Qualifying Activities. In order to qualify for E-1 status, employees of an e-1 employer, whether or not the employer is an individual or foreign company, must be engaged in activities that are executive, managerial, or supervisory in character. If he or she is not so employed, he/she must possess special qualifications that make the services that will be rendered essential for the efficient operation of the business.

A person with an essential skill must possess “special qualifications”. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. The factors to be considered in determining whether an employee possesses “special expertise” that is “essential” to the firm’s U.S. operations include such factors as the proven expertise, uniqueness of the specific skills, length of experience with the firm, the period of training, and the salary. In determining whether the applicant possesses special qualifications that are essential to the treaty enterprise, an INS officer must take into account all the particular facts presented.

DOCUMENTARY REQUIREMENTS

• Business plan outlining future investment
• Substantial trade principally between the United States and the treaty country
• Documentation regarding majority ownership of company; type of trade involved; volume of trade; and percentage of trade between United States operation and treaty country
• Duties and qualifications of individual
• Approval by U.S. consul

OBTAINING THE E1 VISA

E-1 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continues to qualify for E-1 status. Upon each entry to the United States, E-1 visa holders are generally granted two years of E status on Form I-94 as long as the E-1 visa is valid at the time of entry.

Spouses and dependent children under 21 of E-1 visa recipients are also eligible for E-1 dependent visas. Moreover, E spouses are eligible to apply for employment authorization after they enter the United States.

E-1 nonimmigrants who do not plan to travel internationally may apply to extend their status for up to two years by filing an application with the Immigration & Naturalization Service.

The treaty trader must always be prepared to establish to the consular officer that he intends to return abroad upon completion of his venture and will have his status cancelled if he is unable to do so.

E-1 TREATY COUNTRIES

Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Canada, Colombia, Costa Rica, Denmark (does not include Faroe Islands or Greenland), Estonia, Ethiopia, Finland, France (includes Martinique, Guadaloupe, French Guiana and Reunion), Germany, Greece, Honduras, Ireland, Israel, Italy, Japan (includes Bonin and Ryukyu Islands), Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands (includes Aruba and Netherlands Antilles), Norway (does not include Svalbard), Oman, Pakistan, Paraguay, Philippines, Spain (applies to all territories), Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, United Kingdom (applies only to British territories in Europe), and Yugoslavia (valid for new Republics that arose out of former Yugoslavia). Iran is also a treaty trader country, however the treaty is inoperative because of the Executive Order preventing trade with Iran.

E-2: Investor Visa

OVERVIEW

The E-2 treaty investor visa allows an individual to come to the U.S. for the purpose of furthering a substantial investment in a U.S. enterprise made by individuals or businesses that are citizens of a treaty country.

In many cases, an E-2 visa can be granted to an individual who is an employee of a treaty investor if he/she holds the same nationality as the foreign investor/employer and seeks admission to the U.S. to engage in duties that require special qualifications (either executive, managerial, supervisory or “essential” skills) essential to the operation of the enterprise. A foreign national may also qualify for E-2 status if he or she intends to develop and direct the operations of an enterprise in which he or she has invested, or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital.

SPECIFIC REQUIREMENTS FOR E-2 VISA

The E-2 Treaty Trader Must, Whether an Individual or Business or Individual Employed by that Individual or Business, Possess the Nationality of Country with whom the United States Maintains a Treaty of Commerce and Navigation.

Even if the treaty exists with the United States, a foreign investor who seeks E-2 visa status must meet all of the following requirements:

• The investor has invested or is actively in the process of investing;
• The investor’s enterprise must be a real and operating commercial enterprise;
• The investor’s investment is substantial;
• The investment is more than a marginal one solely for earning a living;
• The investor is in a position to “develop and direct” the enterprise;
• An E-2 applicant, if an employee of the investor, must be coming to the U.S in an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
• The E-2 visa applicant must intend to depart the United States when his/her E-2 status terminates.

At Least Fifty (50%) of the Corresponding E-2 Business Must Be Owned By Nationals of the Treaty Country. The nationality of the company’s stock holders is significant. For instance, if a business owns another business, then the nationality of the business’ ownership must be mapped back to the nationalities of the corporate shareholders. In addition, the country of incorporation is not important with regard to satisfying the shareholders’ nationality requirements for the E-2 visa.

Persons Seeking E-2 Status Must Be Engaged in Qualifying Activities. In order to qualify for E-2 status, employees of an E-2 employer, whether or not the employer is an individual or foreign company, must be engaged in activities that are executive, managerial, or supervisory in character. If he or she is not so employed, he/she must possess special qualifications that make the services that will be rendered essential for the efficient operation of the business.

A person with an essential skill must possess “special qualifications”. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. The factors to be considered in determining whether an employee possesses “special expertise” that is “essential” to the firm’s U.S. operations include such factors as the proven expertise, uniqueness of the specific skills, length of experience with the firm, the period of training, and the salary. In determining whether the applicant possesses special qualifications that are essential to the treaty enterprise, an INS officer must take into account all the particular facts presented.

DOCUMENTARY REQUIREMENTS

• Business plan outlining future investment scheme
• Substantial investment in the United States leading to the creation of U.S. jobs
• Approval by the U.S. consul

OBTAINING THE E2 VISA

Before an individual can apply for an E-2 visa, the company in the United States where he or she will work must become E-2 qualified. An initial request to qualify the U.S. company for E-2 status must be filed together with at least one individual’s E-2 application at the U.S. Embassy or Consulate that has jurisdiction over the treaty country. Once the company is E-2 qualified, any nationals of the treaty country who will work for the qualified U.S. entity may apply for E-2 visas at the appropriate U.S. Embassy or Consulate.

Once the company is E-2 qualified, an individual who is a national of the treaty country can apply for an E-2 visa if he or she is coming to work as an executive or supervisor, or an essential employee. The individual does not have to be employed by the company abroad in order to qualify for E-2 status.

E-2 visas can be issued for up to five years and are renewable indefinitely as long as the company and the individual continues to qualify for E-2 status. Upon each entry to the United States, E-2 visa holders are generally granted two years of E status on Form I-94 as long as the E-2 visa is valid at the time of entry.

Spouses and dependent children under 21 of E-2 visa recipients are also eligible for E-2 dependent visas. Moreover, E spouses are eligible to apply for employment authorization after they enter the United States.

E-2 nonimmigrants who do not plan to travel internationally may apply to extend their status for up to two years by filing an application with the Immigration & Naturalization Service.

The treaty investor must always be prepared to establish to the consular officer that he intends to return abroad upon completion of his venture and will have his status cancelled if he is unable to do so.

E-2 TREATY INVESTOR COUNTRIES

Argentina, Armenia, Australia, Austria, Bangladesh, Bulgaria, Cameroon, Canada, China (Taiwan), Columbia, Congo (Republic of), Congo (Democratic Republic of), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Kazakhstan, Japan, Korea, Kyrgyzstan, Latvia, Liberia, Luxembourg, Mexico, Moldavia, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Rep., Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom and Yugoslavia.