E VISA FOR TREATY TRADERS OR INVESTORS

• Who is be eligible for an E visa classification?
• E-1 visas for Treaty Traders
• Countries with Treaties for E-1 visas
• E-2 visas for Investors
• Countries with Treaties for E-2 visas
• Requirements for employees of E visa Treaty Employers
• Spouses and children of E visa Holders

WHO IS ELIBLE FOR E VISA CLASSIFICATION?

A foreign national seeking to start a new business in the United States may qualify for E-1 or E-2 visa. The E-visa requires the foreigner to be a national of a country that has entered into a Treaty of Friendship, Commerce and Navigation or bilateral investment treaty with the United States, and otherwise meets the requirements for the classification. The E classification is one of the most useful nonimmigrant categories available under the Immigration and Nationality Act. The E visa is sometimes a better option for many international companies that qualify for treaty-trader or treaty-investor status and that will employ non-degreed executives, supervisors or special qualifications workers. The E visa may be used by companies owned by a single investor as well as by large multinational companies.

The E classification therefore consists of two subcategories, the E-1 category for treaty traders and E-2 classification for treaty investors.

To qualify for either E-1 treaty trader or E-2 investor status, the applicant must have the nationality of the treaty country. This nationality requirement is easy to satisfy when the treaty business is at least 50% owned by treaty nationals.

E-1 VISAS FOR TREATY TRADERS

The US Consulate abroad may issue an E-1 visa is to foreign nationals that wish to carry on substantial trade which is international in scope principally between U.S. and the foreign state of which s/he is a national. USCIS approval is not required and the prospective worker may apply directly to the U.S. consulate.

To qualify for E-1 visa, the applicant must have evidence of the following:

• National of the country with whom the U.S. has a treaty or bilateral agreement;
• Activity constitutes “trade”. “Trade” is defined as an “international exchange of items of trade for consideration between the United States and the treaty country” . The traceable exchange in goods or services must be between the United States and the other treaty country. Items of trade “include but are not limited to goods, services, international banking, insurance monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities.” Goods are “tangible commodities or merchandise having extrinsic value.” Services are “legitimate economic activities which provide other than tangible goods.” Service is interpreted “in an expansive fashion.”
• Trade must be principally between U.S. and treaty country. Trade is considered principal when more than 50% of total volume of international trade is between U.S. and treaty country.
• Trade has to be substantial in nature, i.e. amount of trade sufficient to insure a continuous flow of international trade between the U.S. and the treaty country;
• If the treaty employer is a corporation, the organization shall be at least 50% owned by persons having the nationality of the treaty country; and
• That he/she intends to depart the U.S. upon termination of E-1 status.

Countries with Treaties for E-1 Visas

Argentina, Aruba, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Gibraltar, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Netherlands Antilles, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Serbia Montenegra, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Yugoslavia, Wallis & Futura Islands, Western Sahara.

E-2 VISAS FOR TREATY INVESTORS

E-2 visas are issued by the US Consulate abroad, to foreign national of a country that has entered into a treaty with the U.S. and seeks to enter the U.S. to “direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital”.

To qualify for E-2 visa, the applicant must have evidence of the following:

• National of the country with whom the U.S. has a treaty or bilateral agreement. If the treaty employer is a corporation, the organization shall be at least 50% owned by persons having the nationality of the treaty country;
• Substantial investment (generally in excess of $100,000). The term "substantial" means that the investment must be significantly proportional to the total investment (usually more than half of the value of the business), or to an amount normally considered necessary to establish a new business;
• Investment that actually exists or applicant is actively in the process of investing;
• The investment is not marginal, i.e., not sole means of support and/or the goal of the investment is to create jobs for U.S. citizens or permanent residents;
• If the applicant is not the principal investor, he/she must possess executive or managerial duties or special skills that make his/her services essential to the employer's operations (see infra);
• That he/she intends to depart the U.S. upon termination of E-1 status.

Countries with Treaties for E-2 Visas

Albania, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bangladesh, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Democratic Rep. of the), Congo (Rep.), (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Gibraltar, Grenada, Haiti, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldavia, Mongolia, Morocco, Mozambique, Netherlands, Netherlands Antilles, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Russian Fed., Senegal, Serbia Montenegra, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Uzbekistan, Yugoslavia, Wallis & Futura Islands, Western Sahara

REQUIREMENTS FOR EMPLOYEES OF E VISA TREATY EMPLOYERS

Employees of E-1/E-2 must have same nationality as treaty employer and must be either:

a . Executives and Supervisors,

• Position must be principally and primarily, as opposed to incidentally or collaterally, executive or supervisory.
• Duties must provide the employee ultimate control and responsibility for the enterprise’s overall operation or a major component of it. To determine the requirements control and responsibility, the US Consulate shall consider: (i) whether the executive position provides great authority to determine policy and direction; (ii) whether the supervisory position provides supervision for a significant portion of the operation and does not generally involve supervision over low-level employees; (iii) whether the applicant possesses executive/supervisory skills and experience; (iv) whether salary and position title are commensurate with executive/supervisory position; (v) the relationship of the position to the organizational structure; (vi) the responsibility of the applicant for making discretionary decisions, setting policies, directing and managing business operations, and/or supervising other professional and supervisory personnel; and (vii) if the position requires performance of routine staff work or if it is only of an incidental nature;

b . Non-supervisory person with special qualifications who is an essential employee. In determining if essential employee, the factors to consider are as follows:

• the employee’s degree or proven expertise in area of operations;
• the uniqueness of the specific skills;
• the function of the job to which the applicant is destined;
• the salary such special expertise can command, and
• the availability of U.S. workers.

SPOUSES AND CHILDREN OF E VISA HOLDERS

The spouse and children accompanying or following to join a principal E need no showing of treaty nationality. The spouses of an E visa holder who enters U.S. as E spouse can now obtain employment authorization. The employment authorization filed on I-765 at the Service Center with jurisdiction over spouse’s place of residence.