Simkin.com - E Visas

The Immigration and Nationality Act ("INA") provides special status to citizens of countries which have entered into treaties with the United States. E visas offer benefits which are not available in many other non-immigrant categories. For example, E visa holders can extend the duration of their visas almost indefinitely and do not have to show ties to their home country as long as they affirm that they will leave the United States when the period of their authorized stay (including any extensions) ends.

INA §101(a)(15)(E) requires the existence of a treaty of Friendship, Commerce, and Navigation ("FCN") between the United States and another country in order for the E visa classification to be granted to nationals of that country. Similarly, the term "treaty country" is defined in 22 CFR §41.51(f) as a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. 22 CFR §41.51(f) also clarifies that a treaty country includes a foreign state that is accorded treaty visa privileges under INA §101(a)(15)(E) by specific legislation (other than the INA). This essentially recognizes the existing E visa eligibility of nationals of the Philippines, Canada and Mexico, which arises from legislation.

Only citizens or nationals of a treaty country may apply for an E visa. Please refer to the list of treaty countries for further information on who is eligible. Canadian citizens are eligible for both E-1 and E-2 status as a result of the North American Free Trade Agreement.

Canadian landed immigrants are not eligible for E-1 or E-2 visas unless their country of citizenship has entered into its own treaty of commerce and navigation or bilateral investment treaty with the United States. The U.S. Consulate in Toronto will entertain an E visa application pursuant to a treaty other than NAFTA provided that the applicant is also a resident of Canada.

The citizenship or nationality of an individual is determined by his or her country of citizenship. In the case of a corporation, its nationality is determined by examining its stock ownership. The nationality of such a corporation is the nationality of the individuals owning at least 50% of the corporation's stock. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the location of the exchange. However, where a corporation's stock is exchanged in more than one country, then the applicant must satisfy the consular officer by the best evidence available that the business meets the nationality requirement.

In a situation where the treaty trader or investor is a corporation, individual employees entering the United States under E status must have the same nationality as that treaty business. For example, a national of England could not enter the United States as the manager of a Canadian company.

An E visa applicant must "intend to depart from the United States upon the termination of his status." Applicants rarely have a problem in satisfying this requirement. A statement of intent from the applicant to return to his or her home country when treaty status terminates is usually sufficient.

The E-1 treaty trader visa is available to enterprises engaged in trade with the United States. Treaty traders must be entering the United States solely to carry on trade of a substantial nature, which is international in scope, principally between the United States and the treaty country. In the case of an E-2 employee of the business, the employee must be working in an executive, supervisory, or essential skills capacity.

The word "Trade" is defined as the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties which call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other. According to 22 CFR §41.51(i), items which qualify as items of trade include but are not limited to goods, services, technology, banking, insurance, transportation, tourism, communications, and some news gathering services.

"Substantial trade" entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow envisages numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item is relevant, greater weight is given to more numerous exchanges of larger value.

The term "principal trade" is defined as where at least 51% of the total volume of the foreign business's international trade is between the U.S. and the treaty country. Accordingly, domestic trade is not considered when calculating the percentage of principal trade.

The treaty country must show a continued course of trade which must have already commenced prior to the alien applying for E status.

The E-2 treaty investor visa is available to nationals of the treaty country who are engaging in investment in the United States. The investor must show that he/she has invested or is actively in the process of investing a substantial amount of capital in a real and operating commercial enterprise in the U.S., other than a marginal one solely to earn a living for the investor and his/her dependents. The investor must also be in a position to "develop and direct" the enterprise.

The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. A shell company, passive investment, or uncommitted funds do not qualify as they do not require the intent to direct or develop a commercial enterprise. However, an active real estate development would be a qualifying enterprise.

A definition of the phrase "substantial amount of capital" within the context of an E-2 investment is now defined at 22 CFR §41.51(n) as an amount which is:

a. substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under construction;

b. sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

c. of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

For the most part, this definition reiterates the "proportionality test" described in the Foreign Affairs Manual (the manual referred to by U.S. consulates). In order for an investment to be substantial, it must be proportional to the total value of the business. The definition also requires a sufficient investment to support the likelihood that the business will be successful.

Neither the above definition nor the Foreign Affairs Manual describe a minimum required investment for E-2 eligibility. Instead, the Foreign Affairs Manual provides several examples of acceptable proportionality at various levels of investment.

However, in practice the quantum of the investment is also considered. In the past, the U.S. consulate in Toronto has applied a de facto minimum threshold of $50,000.00USD. This is perhaps because the Foreign Affairs Manual specifically refers to an investment of $50,000.00USD (it requires a percentage of investment approaching 90-100% of the total value of the business). However, consulates in other countries often require a higher investment amount.

The alien must not be investing in a marginal enterprise solely for the purpose of earning a living. The Foreign Affairs Manual discusses several methods of establishing that the business is not marginal:

a. If the applicant has another source of income or other financial means to support himself or herself and his or her family;

b. If the income derived from the business exceeds what is necessary for the applicant to support himself or herself and his or her family; or

c. If the business will have a positive economic impact on the local area (for example, the investment will expand job opportunities locally and/or that the income or return from such a business will have a positive significant impact on the local economy).

Unfortunately, 8 CFR §214.2(e)(15) now precludes establishing that the business is not marginal by providing evidence of other sources of income or financial means. However, it also confirms that the business is not considered marginal if its projected future income-generating capacity can be realized within 5 years from the date the investor commences the normal business activity of the enterprise.

The principal investor who enters the United States must have control over the business and be responsible for the development and direction of the investment. This is usually established by showing that the E-2 investor owns over 50% of the E-2 business.

An alien employee of a treaty trader or investor may be granted E-1 or E-2 status if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:

a. A person having the nationality of the treaty country, who is maintaining the status of treaty trader or treaty investor if in the United States or if not in the United States would be classifiable as a treaty trader or treaty investor; or

b. An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader or treaty investor status if residing in the United States or if not residing in the United States who would be classifiable as treaty traders or treaty investors.

The employee must have the same nationality as the treaty trader employer. A permanent resident alien may not qualify to bring in employees under E-1 or E-2 status. In addition, shares of a corporation owned by permanent resident aliens cannot be considered in determining majority ownership by nationals of the treaty country to qualify the company for bringing in alien employees under E-1 status.

Executive and supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof. An executive position provides the employee great authority to determine policy of and direction for the enterprise. A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees. The executive or supervisory element of the employee's position must be a principal and primary function of the position and not an incidental or collateral function.

Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise. The essential nature of the alien's skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command.

There are two types of essential skills situations. The first type involves situations in which the treaty business will be expected to train U.S. workers in a reasonably short time to replace the following essential skills employees. These may involve the following employees:

a. Essential skills employees needed in the start-up of an enterprise (usually for not more than a year or two) because of their familiarity with the overseas operation rather than their specialized skills; and

b. Highly trained and specially qualified technicians needed to train or supervise personnel in manufacturing, maintenance and repair functions, even though they may also perform some manual duties.

As such, workers are essential only because U.S. personnel cannot be found. The employer must be prepared to show that: 1. qualified personnel are not available locally and 2. that it is training U.S. residents as replacements.

The second type involves essential employees who qualify for E classification on the basis of a long-term or continuing need. Some skills may be essential for as long as the business is operating. An essential employee need not be either a technician or a start-up employee. Long-term essentiality might be established in connection with continuous activities in areas such as product improvement, quality control, or the provision of a service not generally available in the United States. There is no requirement that the employer train this type of essential employee. There is an implicit requirement to train only if the skills are of a nature conducive to transfer to the local labor market; some skills are not readily transferred, and therefore remain essential to the efficient operation of the business for an indefinite period of time.

E visas are generally valid for a period of five years or less. The maximum visa duration permitted will depend upon the nationality of the alien. The maximum period allowed for each nationality can be determined by referring to the Reciprocity Schedules contained in the Foreign Affairs Manual. For example, the maximum duration of a treaty trader or investor visa for Canadian citizens is 60 months, or five years. It is important to remember that a consular officer may choose to grant an E visa for a shorter period of time.

Despite the fact that E visas may be valid for up to five years, pursuant to 8 CFR §214.2(e)(1), treaty traders and investors may not be admitted for an initial period of more than two years and may not be granted extensions of stay in increments of more than two years. Therefore, an alien in treaty trader or investor status with a five year visa will initially be admitted for only two years. He or she can then apply for an extension of stay of two years or simply leave the United States and seek reentry with the valid visa for an additional two years.

There is no limit on the number of extensions allowed under this category. While dual intent is statutorily recognized only for H-1 and L nonimmigrants, in practice, a form of dual intent is recognized for E nonimmigrants as well. Please refer to the article on dual intent for additional information.

The dependent spouse and minor child of a treaty trader or investor are entitled to the same classification as the principal alien; the nationality of the spouse or child is immaterial. Dependents may remain in the United States for the duration of the principal alien's stay. They can attend school but may not seek employment.

E-2 Applications made at the U.S. consulate in Toronto are currently processed in about 4-6 weeks. Although personal interviews are common for E visa applications in certain countries, in general, the U.S. consulate in Toronto will waive the requirement of a personal interview and E visa applications may be processed by mail.

For more information, or for help determining and obtaining the right VISA for you, please consider a legal consultation.

E-1/E-2 Visas for Treaty Traders and Investors