THE E-1 and E-2 VISASTreaty Trader and Treaty Investor Visa
The E-1 and E-2 visa categories provide a great way to transfer employees from treaty countries to the United States. Foreign owned companies use it routinely to transfer employees from abroad to the U.S. There is no annual limit to the E visas, which makes it more desirable than the H-1B visa because employers are able to file for an employee’s E visas throughout the year. Unlike the L visa, it is not necessary to have a business outside the U.S., and it is not necessary to have worked for the foreign entity for any length of time. Another advantage is that the E visa can be renewed without limits on periods of stay in the U.S. like many other visas.
E-1 Visa Requirements
E-1 visas are used for traders. The requirements for the E-1 visa for treaty traders are as follows:
- There has to be a trade treaty that is ratified between the United States and the foreign country. The following countries qualify for E-1 Treaty Trader Status: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom and Yugoslavia.
- The visa applicant must be a citizen of one of the above countries who have a trade treaty with the U.S.
- There must be active and substantial trade between the U.S. and the foreign country in order to qualify. What is “substantial” will vary from case to case depending on the size of the business and trade. Businesses in the millions of dollars will certainly qualify, but even smaller companies may qualify. Trade can be in form of goods or services. In addition, more than 50% of the trade the company conducts must be between the U.S. and the foreign country. For example, if an Argentinean company has $1 million per year in imports from Argentina to the U.S., but also imports $2 million per year from China it will not qualify.
The visa applicant must be coming to the United States to carry on substantial trade in order to develop and direct the enterprise. In certain situations, the visa applicant can be an employee transferring to the U.S. as a manager, executive, or specialized knowledge employee.
- An “executive” is one who directs the management of the company or a major part or function of the organization, and has a supervisory role in the organization (such as President, Vice President, Director, etc.).
- A “manager” directs the organization, a department, or a function of the organization.
- A “specialized knowledge employee” has a special knowledge of the company’s products or services and their applications in world markets or an advanced or proprietary knowledge of the company’s processes or procedures. The specialized knowledge cannot be generally available in the industry and must be unique and proprietary to the company and its products, services, processes or procedures. It would have to take the company a lot of time, effort and money to train another person with a similar skill-set to gain this knowledge.
E-2 Visa Requirements
E-2 visas are used for investors. The requirements for the E-2 visa for treaty investors are as follows:
- There has to be an investment treaty that is ratified between the United States and the foreign country. The following countries qualify for E-2 Treaty Investor Status: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia & Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom and Yugoslavia.
- The visa applicant must be a citizen of one of the above countries who have a treaty of commerce and navigation with the U.S.
- The investor must have already invested, or is actively in the process of investing, a ‘substantial amount of capital’. What is ‘substantial’ will vary from case to case depending on the size of the business. Businesses in the millions of dollars will certainly qualify, but even smaller companies may qualify.
- The business may not be a marginal business. It must be an active business with substantial revenues and profits and cannot be used solely as a way for the investor to earn minimal income.
- The visa applicant must be coming to the United States to develop and direct the enterprise. In certain situations, the visa applicant can also be an employee transferring to the U.S. as a manager, executive or specialized knowledge employee.
E Visa Procedures and Processing Times
The E visas are usually filed with the U.S. embassy or consulate in the applicant’s country of citizenship or residence. The procedure for filing your E visa will vary greatly from country to country because different consulates are involved and each has different procedures and processing times. Most documents will be similar across the board, but there are many regional changes and requirements that each consulate has separately. For example, in some countries the E-2 visa application can be adjudicated in 2 weeks, while in the U.K. processing times often take over 4 months.
Applicants who are already in the U.S. in another visa status may ask for a change of status here. In most cases this is not recommended because the applicant will have to apply again in his or her home country for a visa upon leaving the U.S.
Dependants such as spouses and children may apply simultaneously or following the primary applicant’s approval. Spouses and minor children (under 21) of E visa holders receive E-1 or E-2 visas. Spouses with E visas may apply for work authorization upon arrival in the U.S. and then work independently without a visa sponsor. Children can study in the U.S. without separate sponsorship but cannot work.
Once the company is approved for E visa status, the various consulates will keep that registration for a while. Some for 3 years, some for 5, etc. This is like a blanket approval of the company, which allows the company to file for additional employees more easily since the company’s eligibility to file for employees in this visa status has already been officially established.
E Visa validity
E visas are usually granted for 5 years at a time. However, if the U.S. company has been doing business for less than one year, additional information and evidence must be submitted at a later date. If approved, E visas for start-ups will be granted for two years. If, after the two years the company is doing well, the visa can be renewed for five years.
E visas may not be renewed indefinitely as it is not intended to be a permanent visa status. The applicant must intend to leave the U.S. when his or her stay is over.
New companies coming to the U.S. often underestimate the time it will take them to set up operations and start accruing revenue. Therefore, it is really important to use an immigration attorney with strong business knowledge. Call our office today to speak to an experienced business immigration attorney. We’ll determine your best strategy to get you positive results and show you how we avoid common issues that can lead to delays and denials.