E-1 AND E-2 VISAS
Treaties between United States and many countries allow foreign persons to come to the United States to conduct trade (import/export activities) or to manage investments. Unlike the Immigrant Investor visa there is no fixed dollar amount for the investment. The E-1 visa is used to conduct trade between the United States and the country of nationality. The E-2 visa is used for overseeing investments in the U.S.BASIC REQUIREMENTS FOR AN E VISA
- A Treaty of Commerce and Navigation or a Bilateral Investment treaty must be in effect between the U.S. and the country of nationality of the foreign company or investor.
- The company or the individual engaging in trade or investment in the U.S. must be of the same nationality as the treaty country.
- The nationality of an individual is the country of citizenship.
- The nationality of a corporation or partnership is determined by the citizenship of the individuals having controlling interest (stock ownership or partnership interest in the business entity). Controlling interest means at least 50% ownership. For treaty purposes, citizens of the treaty country who have acquired U.S. permanent residence status can not be counted in determining the 50% ownership. However, citizens of the treaty country who are in the U.S. in E visa status can be counted in determining the 50% ownership.
- The employee or principal who is applying for E visa status must have the same nationality as the treaty entity. Spouses and children of the employee or principal may obtain derivative E status without being a citizen of the treaty country.
- Substantial Trade
The company must be involved in substantial trade principally between the U.S. and the treaty country.
The definition of trade, for purposes of the E-1 visa, has broadened considerably. Previously, the E-1 visa was only available to businesses involved in the exchange, purchase or sale of tangible goods. Now, E-1 visa status is also available for businesses involved in the exchange, purchase, or sale of services as well as tangible goods.
Accordingly, businesses involved in services such as advertising, consulting, accounting, engineering or law may qualify for E-1 status. Also, companies involved in technology transfers may qualify for E-1 status if title to the technology passes from one company to another.
No specific minimum dollar amount is required to meet the requirement of substantial trade. Instead the dollar amount and the number of transactions are taken into account as well as the requirement that the trade be continuous. A single large transaction will not qualify while numerous small transactions may.
For the trade to be considered principally between the U.S. and the treaty country more than 50% of the dollar volume of the international trade must be between the U.S. and the treaty country.
- Principal Trader
The person who is accorded E-1 visa status must be coming to the U.S. as the principal trader or in a supervisory or executive position or must have "skills which are essential to the successful operation of the enterprise".
- Substantial Investment
There is no specific dollar amount which must be invested to meet the "substantial" requirement but the investment must meet one of two tests:
- It must represent a significant proportion of the total value of the business enterprise (this test is usually applied to investments in existing businesses), or
- It must be sufficient to establish a profitable and viable business of the type contemplated.
- The investment must be in an active business.
Investment in property held for future appreciation, bank deposits and investments in stocks and securities would not qualify for the E-2 visa. The investment must be in an enterprise which produces some service or commodity.
- The investment should create job opportunities for U.S. workers.
While it is preferable to have the U.S. workers hired at the time of application for the E-2 visa, reasonably achievable projections of jobs that will be created is often sufficent.
- The E-2 visa applicant must play a key role in the operation of the business.
The visa applicant must either be the investor who is coming to the U.S. to develop or direct the investment or must be a manager or a highly trained employee with special skills necessary for the development of the investment.STATUS OF FAMILY MEMBERS
Family members (spouses and unmarried children under 21) of the principal E visa employee may obtain derivative E visa status which allows them to live in the U.S. and attend school. Family members are not authorized to work unless they independently qualify for a visa.DURATION OF STAY IN THE U.S.
E visas are generally issued for four or five years. E visa holders are admitted to the U.S. for two years and extensions of stay may be granted for up to two years at a time. Extensions are generally unlimited as long as the trade or investment continues. An E visa may often be reissued for an additional five years by the State Department Visa Office in Washington D.C. In this event it is not necessary to return to the home country to renew the visa.APPLICATION PROCEDURE
The E visa application can be made through a U.S. consulate abroad or through a U.S. office of the Immigration & Naturalization Service. However, the reader is strongly advised to obtain the advice of a U.S. attorney prior to beginning the trading activities making the investment or applying for the visa.
E VISA Treaty Countries
Treaties which provide for trade and investment status (both E-1 and E-2 Visas) are in effect with the following countries:
- China (Taiwan)
- Costa Rica
- United Kingdom
Treaties conferring only E-1 treaty-trader status exist with the following countries.
Treaties conferrring only E-2 Treaty-Investor status are in effect with the following countries:
- Czech Republic
- Sri Lanka
- Trinidad & Tobago