E-1/E-2 Visa

E-1/E-2 Treaty Trader/Treaty Investor Visa

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. Most Western European countries are parties to such treaties with the U.S. These treaties provide that a national of the treaty country involved may live and work in the United States for an employer sharing his/her nationality in certain specified capacities. The E visa is the statutory means whereby these treaty provisions are made effective.

The E visa (whether E-1 or E-2) has several unique features. First, it 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.) Direct filing with the Consulate or Embassy speeds up the approval process considerably; however, documentary requirements on E visa applications can be quite rigorous.

The USCIS’s “Premium Processing Service” allows businesses to request expedited adjudication on certain pending and newly filed petitions, including those for the E-1 or E-2 classification, by filing a completed Form I-907 (Request for Premium Processing Service) and paying a fee of $1,225. This fee is in addition to the normal filing fee of $325 and must be paid by separate check or money order.

The USCIS guarantees that within fifteen (15) calendar days of receipt, the employer will receive either an Approval Notice, a Notice of Intent to Deny, a Request for Evidence or a Notice of Investigation for Fraud or Misrepresentation. If USCIS fails to meet its 15-calendar-day guarantee, it will refund the $1,225 to the company but will continue to process the petition expeditiously.

E visa also potentially allows an indefinite duration of authorized stay in the United States. The E visa is usually issued for a period of five (5) years or less; however, there is no statutory limitation as to the number of times it may be renewed so 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.

The two subcategories of E visas differ in their 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. and the treaty country must account for more than 50% of the U.S. company’s trading revenues.

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 businesses 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, managerial 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 that the employee possess special qualifications that make the services s/he will render essential to the efficient operation of the enterprise. Mere technicians 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 the E-1 or E-2 principal 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 U.S.