U.S. immigration laws specifically authorize the issuance of E visas to nationals of a country that has qualifying treaty of commerce and navigation with the United States. Such qualifying treaties may include treaties of Friendship, Commerce and Navigation (FCNs) and Bilateral Investment Treaties (BITs). To qualify for Treaty Trader/Investor visa, apart from being a national of the treaty country, at least 50 percent of the business must be owned by person(s) with the treaty country’s nationality.
Two Types: Treaty Trader Visa (E-1) & Treaty Investor Visa (E-2)
The Treaty Trader visa (E-1) visa is applicable to a treaty national entering the U.S. solely to carry on substantial trade, which is international in scope and principally between the U.S. and the foreign state. For E-1 visa, the treaty national must qualify as a treaty trader or as an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm or treaty trader. Ordinary skilled or unskilled workers do not qualify.
The Treaty Investor visa (E-2) is suitable for a treaty national (or an entity owned by the treaty national(s)) who intend to develop and direct the operations of an enterprise in which treaty national has invested or is actively in the process of investing a substantial amount of capital. For E-2 visa, if the applicant is not the principal investor, she or he must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.
Trade for E-1 visa purposes has three requirements: (1) Trade must constitute an exchange; (2) Trade must be international in scope; and (3) Trade must involve qualifying activities.
There must be an actual exchange, in a meaningful sense, of qualifying commodities such as goods, moneys, or services to create transactions considered trade within the meaning of Immigration and Nationality Act (INA). Trade must be international. Thus, the traceable exchange in goods or services must be between the United States and the other treaty country.
Further, for E-1 the general rule requires that over 50% of the total volume of the international trade conducted by the treaty trader regardless of location must be between the United States and the treaty country of the foreign national’s nationality.
For E-2 visa purpose, there is no bright line test of what would constitute a “substantial” amount of capital. No set dollar figure constitutes a minimum amount of investment to be considered substantial. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational. The U.S. Department of State acknowledges that the costs of investing in a business can vary dramatically, depending on the nature of the business: many millions to buy a factory; and only a relatively small sum to set up a small consulting firm.
A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.
E visas have certain advantages over other nonimmigrant visas. Unlike the L-1 visa, the E visa categories do not require the setting up of a branch, subsidiary or parent in the U.S. of a foreign entity. The E visa category also has less government regulations compared to the H-1B visa category. There is no prevailing wage requirement, labor condition application attestation and posting, and public access file requirements. Neither there is a cap on the initial grant of E visas nor cap on E visa extensions.
Both E-1 and E-2 visa holders are generally initially granted stay of two years with the possibility of unlimited extensions. All E nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. Further, treaty traders/investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age and can get work authorization. More so, their nationalities need not be the same as the treaty investor or employee.