E-1 (treaty trader) and E-2 (treaty investor) visas are issued pursuant to bilateral treaties of friendship, commerce and navigation between the United States and various other countries. These treaties allow a national of the treaty country involved to live and work in the United States for an employer that shares his/her nationality in certain specified capacities. The E visa is the statutory means whereby these treaty provisions are made effective.
Unique Features of the E Visa (Whether E-1 or E-2)
The E Visa is the only nonimmigrant visa to permit employment in the U.S. without the prior approval of a nonimmigrant visa petition by the U.S. Citizenship and Immigration Services (“USCIS”) (It is possible to apply for E-1 or E-2 status by applying directly to the USCIS; however, the individual applicant must be physically present in the U.S. to do so and applying for such status does not result in a visa being issued.) Direct filing with the Consulate or Embassy speeds up the approval process and results in visa issuance.
The E visa also potentially allows an indefinite duration of authorized stay in the United States. Depending on country reciprocity schedules, the E visa may be issued for a period of up to five (5) years. One major advantage of the E visa is that there is no statutory limitation as to the number of extensions one may obtain, as long as the conditions of visa eligibility continue to be met.
Both the E-1 and E-2 visas require that the employing company and the transferring individual meet certain eligibility requirements. For the U.S. company to qualify, it must be at least 50%-owned by a company which is owned by treaty country nationals or it must be at least 50% directly owned by treaty nationals who are not lawful permanent residents of the U.S. The foreign national to be transferred to the U.S. must be of the same nationality as the ultimate owner(s) of the U.S. company.
E Visa Eligibility Requirements
In the case of the E-1 (treaty trader) visa, the U.S. company must document that it is engaged in substantial trade between the U.S. and the treaty country. Substantial trade primarily refers to regular and frequent trade in goods or services. The trade between the U.S. arid the treaty country must account for more than 50% of the U.S. company’s total volume of international trade.
In the case of the E-2 (treaty investor) visa, the foreign parent (company or individual investors) must have made a “substantial investment” in the U.S. company. The term “substantial investment” is not defined by a minimum dollar amount. Rather, the State Department defines a substantial investment as a bona fide or real, active commercial or entrepreneurial undertaking, (other than a marginal enterprise) which produces a service or commodity. The State Department uses a proportionality test, to weigh the investment against the total value of the business or the usual amount needed for successful similar business and to determine whether a substantial investment has been made. Small- and medium-sized businesses should generally plan to invest at least half of the value of the business or the usual amount required to start up similar businesses.
The individuals who are to come to the U.S. must fill executive, supervisory or essential skills positions. The executive and manager classifications require that the employee have broad discretionary authority over either the entire operation or a distinct division thereof. The essential skills classification requires the employee to possess special qualifications that make the services s/he will render essential to the efficient operation of the enterprise. Technicians and lower level administrative personnel rarely qualify for E visas except in start-up situations, and then for only a short period of time. Essential skills employees may have difficulty obtaining a visa for longer than a few years.
Spouses and minor children of E-1 or E-2 principals are also given E-1 or E-2 visas, and spouses are entitled to obtain separate work authorization by applying to the USCIS following arrival in the US.