E VISA– Traders & Investors
The E nonimmigrant visa category is reserved for nationals of countries that have treaties of friendship, commerce and navigation or bilateral investment treaties with the U.S. Nationals of treaty countries may enter the U.S. in E status if they fall into one of two subcategories: (1) as a treaty trader if he or she seeks admission solely to carry on substantial trade, including trade in services or technology, between the U.S. and the foreign state of which he or she is a national (E-1 status); or 2) as a treaty investor if he or she is coming into the U.S. to develop and direct the operations of an enterprise in which he or she has invested, or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital (E-2 status).
- An employee of a treaty trader or investor may also be classified as an E visa holder if he or she holds the same nationality as the principal foreign national employer and is seeking admission to engage in executive or supervisory duties, or have special qualifications that are essential to the efficient operation of the enterprise.
- The E visa applicant does not need to document an intention not to abandon the foreign residence. However, an E visa applicant must express an “unequivocal intent to return after the E status ends.” The consular officer normally does not require the applicant to prove he or she has a residence abroad to which the applicant intends to return or that he or she will be in the U.S. for a “specific temporary period of time” absent evidence of contrary intent. The applicant needs to satisfy the consular officer that he or she intends to depart the U.S. at the end of E status and not apply to adjust status or overstay the end of E status.
- The spouse and unmarried minor children of a principal E-1 or E-2 visa holder are entitled to E-1 or E-2 classification, without regard to their nationality. E-1 and E-2 spouses may now apply for a work authorization document.
- E visa holder is granted an initial period of admission of two years, renewable for five year indefinitely.
- An E treaty trader or investor may only engage in employment consistent with the terms and conditions of his/her status. Employment is employer-specific.
The treaty trader and the treaty investor can be either an individual or a business entity. The treaty trader or investor must, whether an individual or business entity or employee thereof, possess the nationality of the treaty country.
The nationality of a business entity is determined by the nationality of the individual owners of the business. To qualify for E status, at least 50% of the business entity must be owned by nationals of the treaty country. For a corporation, the nationality is determined by the nationalities of the stockholders or, if a publicly traded corporation, where the stock is traded. If an investing entity is owned by another business, then the nationality of ownership must be traced to the owners of the ultimate parent company.
Advantages of E visa
- Convenient tax advantages for investor. No request to file tax return if 183 day test is not met.
- No need to work in US, just develop and manage enterprise.
- Investor can have family in the US (kids in school, fear of kidnap) and he can continue his investments abroad.
E-1 TREATY TRADER DEFINITIONS
Essential Elements. The treaty trader visa is set aside for firms or individuals who develop and carry on substantial trade between the U.S. and the treaty country. Once the existence of a treaty and nationality test have been met, the essential elements of an E-1 case are:
- The trade must constitute an exchange.
- The trade must be international in scope. This means that the traceable exchange in goods or services must be between the U.S. and the treaty country.
- The international trade must be substantial (numerous transactions) or value/dollar amount. Over 50% of the total volume of international trade by the treaty trader must be between the U.S. and the treaty country.
- The trade must involve qualifying activities. This means the trade must involve the commercial exchange, purchase or sale of goods or services in the marketplace. “Goods” in this context are defined as tangible commodities or merchandise having extrinsic value. “Services” are defined as legitimate economic activities which provide other than tangible goods, such as banking, insurance, tourism, transportation, communications, data processing, advertising, etc.
- The trade must be in existence. Trade between the U.S. and the treaty country must already be in progress by the individual or firm. “Existing trade includes successfully integrated contracts binding upon the parties which call for the immediate exchange of items of trade.”
E-2 TREATY INVESTOR KEY FEATURES
- The treaty investor can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the visa holder or other citizens of the country of origin, so long as this country has a treaty with the U.S.
- While in the U.S., the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.
- Initial visas may last for up to five years, with unlimited extensions. The length of the visa depends upon the visa “reciprocity” agreement between the U.S. and the foreign country and upon the viability of the business (new companies receive shorter validity periods).
- Each time E visa holders (workers or family members) enter the U.S., they receive a period of stay of up to two years. They also may extend their stay while remaining in the U.S.
- Visas are available for an accompanying spouse and minor, unmarried children.
- The spouse, but not children, may apply for a work permit once physically present in the U.S.
QUALIFICATION CRITERIA FOR AN E-2 TREATY INVESTOR VISA
There are six requirements for getting an E-2 visa:
- The applicant must be a citizen of a country that has a relevant treaty with the United States.
- The applicant must be coming to work in the U.S. for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the country of origin.
- The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.
- The applicant or the company must have made a substantial investment in the U.S. business (there’s no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business).
- The U.S. company must be actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers.
- The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.
An employer in the U.S. needs to satisfy several requirements in order to bring an employee into the U.S. as an E-1 or E-2 treaty employee:
- The prospective employer in the U.S. must be a national of the treaty country. If the employer is an individual, he/she must have the nationality of the treaty country.
- If a corporation, at least 50% of the owners must be nationals of the treaty country. A U.S. permanent resident will not be considered to have the nationality of the treaty country.
- In addition, shares of a business owned by permanent residents cannot be used to determine ownership for nationality purposes.
- The employer and prospective E-2 employee must have the same nationality.
- The employer must be in the U.S. in treaty status or eligible for treaty status if overseas.
The employee must be engaged in executive or supervisory duties or have special qualifications that make the employee’s services essential to the efficient operation of the enterprise. The consular officer will look to several factors in determining if the skills are specialized and essential:
- The alien’s proven expertise in the specialized area
- The uniqueness of the skills
- The proposed job function
- The salary
- How much training would be required to perform the duties
- The availability of U.S. workers with the same skills.
How Long Can E Visa Holders Remain in the United States
E visas are generally issued for five years. Extensions of stay in the United States may be granted as long as eligibility continues and the treaty remains in force.
At the border, E visa holders are admitted to the United States for two years at each entry (notwithstanding the visa-validity period). Extensions of stay in the United States may be granted for up to two years at a time from the appropriate U.S. Citizenship and Immigration Services (USCIS) service center.
An E visa may be reissued for up to five years at the home consulate with submission of appropriate documentation establishing the ongoing trade or continuing operation of the business investment enterprise. The spouse and children of E visa holder do not require treaty country nationality. Children may attend school and spouses in E status are eligible to apply for an employment authorization document.