E-1 & E-2

E visas

E-1 and E-2 nonimmigrant visas are available to the citizens of foreign countries that have a bilateral treaty of commerce and navigation with the U.S. providing for nonimmigrant entries.  E visas are especially useful for business owners, managers and employees who need to remain in the U.S. for extended periods of time in order to oversee or work in an enterprise engaged in trade between the U.S. and a foreign state or that represents a major investment in the U.S. The E visa category was established to give effect to those treaties between the U.S. and foreign countries that provide for reciprocal benefits to nationals of each country who invest in the other country or who conduct trade between the two countries.

Qualified E-1 or E-2 status holders are allowed a maximum initial stay of two years, and requests for extension of stay may be granted in increments of up to two years each. There is no limit on how many times an E visa holder can extend their stay, so theoretically they could legally remain in the U.S. on E-1 or E-2 status indefinitely, so long as they remain qualified for their E status. All E status holders, however, must maintain an intention to depart the U.S. when their status expires or is terminated.

Treaty Countries (http://travel.state.gov/content/visas/english/fees/treaty.html)

To determine whether the E category can be used, the first step is to determine whether a treaty of commerce and navigation or bilateral investment treaty exists between the U.S. and the country of nationality of the foreign company or investor.

Treaties or equivalent arrangements providing for trade and investment (E-1 and E-2) status are in effect with the following countries:

Argentina Germany Pakistan
Australia Honduras Paraguay
Austria Iran Philippines
Belgium Ireland Poland
Bolivia Italy Serbia
Bosnia and Herzegovina Japan Singapore
Canada Jordan Slovenia
Chile Kosovo Korea (South)
China (Taiwan only) Latvia Spain
Colombia Liberia Suriname
Costa Rica Luxembourg Sweden
Croatia Macedonia Switzerland
Denmark Mexico Thailand
Estonia Montenegro Togo
Ethiopia Netherlands Turkey
Finland Norway United Kingdom
France Oman Yugoslavia

Treaties conferring only E-1 treaty-trade status exist with the following countries:

Brunei Greece Israel

 

Treaties conferring only E-2 treaty-investor status exist with the following countries:

Albania Ecuador Morocco
Armenia Egypt Panama
Bahrain Grenada Senegal
Bangladesh Jamaica Slovakia
Bulgaria Kazakhstan Sri Lanka
Cameroon Kyrgyzstan Trinidad & Tobago
Congo (Brazzaville) Lithuania Tunisia
Congo (Kinshasa) Moldova Ukraine
Czech Republic Mongolia  

 

E-1 Visa Requirement

E-1 visa allows a national of a treaty country (a country with which the U.S. maintains a treaty of commerce and navigation) to be admitted to the U.S. solely to engage in international trade on his or her own behalf. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

General Qualifications of a Treaty Trader

To qualify for an E-1 trader visa, a foreign treaty trader must:

  • Be a national of a country with which the U.S. maintains a treaty of commerce and navigation;
  • Carry on “substantial trade”; and

o   Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchange of greater value. While there is no minimum requirement regarding the monetary value or volume of each transaction, a one-time transaction, no matter how great the value, does not constitute substantial trade.

  • Carry on “principal trade” between the U.S. and the treaty country which qualified the treaty trader for E-1 classification.

o   Trade qualifies as “principal trade” between the U.S. and the treaty country, when more than 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.

Trade is the existing international exchange of items of trade for consideration between the U.S. and the treaty country. Items of trade include but are not limited to: goods, services, international banking, insurance, transportation, tourism, technology, and news-gathering activities.

General Qualifications of E-1 Employee

To qualify for E-1 visa, the employee of a treaty trade must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country);
  • Meet the definition of “employee” under the relevant law – i.e. an “individual who provides services or labor for an employer for wages or other remuneration”; and
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

Special qualifications are defined by USCIS as skills which make the employee’s services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the U.S.

If the E-1 employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the U.S. who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty trader status. If the owners are not in the U.S., they must be, if they were to seek admissions to this country, classifiable as nonimmigrant treaty traders.

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.

Family of E-1 Treaty Traders and Employees

Treaty traders and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty trader or employee. These family members may seek E-1 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.

E-2 Visa Requirement

E-2 visa allows a national of a treaty county (a country with which the U.S. maintains a treaty of commerce and navigation) to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.

General Qualifications of a Treaty Investor

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation;
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.  The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.

A substantial amount of capital is:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one;
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.  It must meet applicable legal requirements for doing business within its jurisdiction.

General Qualifications of the Employee of a Treaty Investor

To qualify for E-2 classification, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country);
  • Meet the definition of “employee” under relevant law; and
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations;
  • Whether others possess the employee’s specific skills;
  • The salary that the special qualifications can command; and
  • Whether the skills and qualifications are readily available in the United States.

Family of E-1 Treaty Traders and Employees

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.

 

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