E Visa: Treaty Traders and Investors

Requirements of the  E-1/E-2 Visa Category

Section 101(a)(15)(E) of the Immigration and Nationality Act permits eligible enterprises engaged in trade with, or investment in, the United States to transfer key employees to this country for extended periods of time in either E-1, “treaty trader,” or E-2, “treaty investor,” nonimmigrant status. In order to obtain such status, an underlying reciprocal treaty of “friendship, commerce, and navigation” or bilateral investment treaty between the trader/investor’s country of nationality and the United States must be in force. Depending upon its terms, a treaty may confer eligibility for either one or both E categories if both the individuals seeking such status and the employing enterprise meet certain requirements with respect to nationality, substantiality of the proposed trade or investment, and responsibilities of the individuals to be employed.

Nationality

The nationality of an enterprise is determined by the nationality of the persons who ultimately own it. To be considered a national of a treaty country, at least 50% of the enterprise must be owned by nationals of that country. In the case of a company wholly-owned by another corporate entity, the consular official adjudicating an application for E-visa status must look to the nationality of the majority shareholders of the parent company to determine the subsidiary’s nationality. Documentation establishing the business relationship between, and the nationality of, all related companies must be included in the initial application package submitted to the Consul.

Substantial and Continuous Trade

The question of substantiality with respect to trade is complicated and will vary with the nature of a particular enterprise. Trade is measured by the volume, number of transactions and continuity of the course of trade and can involve the exchange, purchase, or sale of goods and/or services. The U.S. office must be engaged principally in trade between the U.S. and the treaty country. It is important to realize that a large dollar value may not necessarily constitute “substantial trade” if there are a limited number of transactions. Conversely, a small dollar value may constitute “substantial trade” if there are many transactions taking place.

In the documents submitted with the initial application, the on-going business operations and substantiality of trade between the U.S. and the treaty country must be established. A foreign corporation and its U.S. enterprise will meet the requirement of continuity of trade if they have engaged in trade with the United States prior to the application for treaty/trader status. They will meet the requirement of “principal trade” if at least 51% of the total volume of business of the U.S. enterprise, consists of trade between the U.S. and the treaty country. Finally, they will meet the requirement of “substantiality” if the trade represents a significant dollar value and a large volume of transactions as well.

Substantial Investment

The question of substantiality with respect to the contemplated investment is similarly complicated. Although there is no set capital investment amount generally regarded as a minimum requirement by most consuls, an applicant will be expected to submit evidence that the amount invested would normally be considered adequate to establish a viable enterprise of the nature contemplated. A qualifying investment requires the control of funds or other capital assets placed at risk. Passive or speculative investments will not qualify, nor will investments secured solely by the existing assets of the U.S. enterprise itself rather than those secured by the personal assets of the individual investors. A key indicator of whether an investment will be considered “active” is whether it will create employment opportunities for U.S. workers.

Employment Responsibilities

Individuals to be transferred to the United States in E-1/E-2 status must be employed in an executive or managerial capacity or as employees possessing specialized skills essential to the success of the U.S. enterprise. In determining whether a particular individual qualifies as an executive or manager, consular officers will consider a number of factors including the proposed job title and salary, the specific responsibilities of the position offered, the degree to which the employee will have ultimate control or supervisory responsibility for the company’s overall operations or for one of its major components, the position’s place in the firm’s organizational structure, and the number and skill levels of the individual’s subordinate employees.

In determining whether an employee possesses essential skills, the Consul will inquire whether the individual’s skills are essential to the firm’s U.S. operations, the degree of proven expertise of the employee in the area of specialization, the uniqueness of those skills, the period of training needed to acquire those skills, and the employee’s length of experience and training with the company abroad.
Application Process. Unlike H-1B and L-1 visas, a petition is not submitted to USCIS prior to obtaining an E-1 or E-2 visa. Instead, application for E-visa status is made directly to the appropriate consular office abroad in most instances. In reality, the application process is a two-step process. The foreign company itself and its U.S. enterprise must first qualify for treaty trader or investor registration, after which any employees it wishes to transfer to the United States must demonstrate eligibility for individual visas. For this purpose, U.S. consulates have developed treaty trader and investor questionnaires which must be used in applying for visas.

Duration of Stay. E-1/E-2 visa status may be approved upon admission to the U. S. for an initial period of two years, and may then be extended for additional two year periods indefinitely for executives and managers. Stricter limits are imposed on essential skills personnel.

Spousal Employment

Under legislation enacted in January 2002, qualifying dependent spouses of managers and executives admitted to the United States in valid E-1/E-2 visa status may apply for employment authorization by submitting an Application for Employment Authorization Document (EAD), Form I-765, to the appropriate USCIS Service Center.

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