Q: What is an E visa?
A: The E Visa allows foreign organizations involved in international trade or making an investment in the United States to send their representatives to oversee their business’ U.S. activities. The E visa is only available to organizations and nationals of those countries that have entered into a trade or investment treaty with the United States.
Q: What are the requirements for an E visa?
A: First, the E-2 principal must be either a person in the U.S. having the nationality of the treaty country (or, if not in the U.S., otherwise entitled to treaty investor status), or be a qualifying employee of an enterprise at least 50% owned by persons of such nationality.
Second, the individual representative of the organization who is being sent to the United States to oversee the organization’s activities must also be a national of the same country as the organization.
The E Visa is subdivided into two sub-classifications: The E-1 Visa for Trade Organizations and the E-2 Visa for Investment Organizations.
Q: What are the requirements for an E-1 visa?
A: The E-1 Visa is available to companies form selected countries engaged in the substantial trade between that country and the United States.
More than 50% of the organization’s international trade must be between the United States and the qualifying country of origin. A background of trade between the selected foreign country and its U.S. subsidiary is required. The kind of trade may include services such as computer consulting or marketing.
An individual representative must be either performing supervisory or executive duties or, in the alternative, must have special skills that cannot be found in a U.S. worker but are essential in conducting trade on behalf of a petitioning business.
Q: What are the requirements for an E-2 visa?
A: The E-2 visa is available to companies that make an active and substantial investment in the United States economy in expectation of profit. An active investment is defined as an irrevocable commitment to funds. Usually, the investor’s own money or personal obligations would have to be at risk. Furthermore, it cannot be an investment that is passive or purely speculative, such as buying stocks, bonds or real estate and waiting for them to appreciate. However, investment into real estate such as an apartment building, for example, may be considered active investment.
The E-2 enterprise (company, corporation, etc.) must involve the investment of a substantial amount of capital, rather than a marginal investment solely for the purpose of earning a living for the investor.
Finally, an E-2 alien may be the actual owner of a qualifying enterprise or an employee of such enterprise working in an executive or supervisory capacity or in a capacity which requires special qualifications essential to the operation of the enterprise. Such employees must have the same nationality as the principal employer. An E-2 alien may perform services for the parent treaty organization or any of its subsidiaries
Q: Are there any issues to be on the lookout for in regards to an E-2 visa?
A: An alien employed by a foreign person may not be classified as an E-2 nonimmigrant unless the foreign employer is also classified as an E-1 nonimmigrant, or if abroad, the employer must be eligible for admission to the U.S. as an E-2 nonimmigrant. If the employer is a corporation or other business organization, the majority ownership (at least 50 percent) of the business must be by aliens who are of the same nationality as the employee and who, if not residing abroad, are maintaining status under Section 101(a)(15)(E) of the Act. An alien who is a lawful permanent resident of the U.S. does not qualify to bring employees into the U.S. under Section 101(a)(15)(E). Shares of a business owned by lawful permanent resident aliens cannot be considered in making determinations of majority ownership by nationals of the treaty country.
Q: What is the duration of the visa?
A: Beneficiaries of the E Visa are granted E status for a five-year period. Five year extensions may be obtained for as long as the person continues to be eligible. Like other work related visas, E visa holders are allowed to simultaneously seek Permanent Residency status.
Q: What if I have a spouse and/or children?
A: Spouses and minor children of E visa holders are eligible for derivative status. There is no requirement that the family members be nationals of a treaty country.
Q: Applying for the E Visa
A: If the applicant for the E Visa is in the United States in another nonimmigrant status, he may apply for a change of status to the USCIS. If he is outside of the United States, he is not required to apply to the INS and await approval, but may apply directly to the U.S. Consulate.
Q: Which countries have entered into a trade and investment treaty with the United States?
| Argentina | Germany | Oman |
|---|---|---|
| Australia | Honduras | Pakistan |
| Austria | Iran | Paraguay |
| Belgium | Ireland | Philippines |
| Bosnia | Italy | Slovenia |
| Canada | Japan | Spain |
| China (Taiwan) | Korea | Surinam |
| Colombia | Latvia | Sweden |
| Costa Rica | Liberia | Switzerland |
| Croatia | Luxembourg | Thailand |
Q: What is the application process?
A: Because a treaty investor does not require a separate petition, E-2 status may be obtained either directly through the Department of State (by applying for an E-2 visa), or in the case of an alien already in the U.S., by applying to the appropriate service center for a change of status on Form I-129 , including the E supplement. Supporting documents to be submitted with an E-2 application include documents to establish the nature of the employment and the ownership of the enterprise, as described in paragraph (a), above.
Q: What happens if my application is denied?
A: There is no appeal from a denial of E-1 classification. However, if the facts of the case are novel, complex or potentially of value as a precedent, the decision of the director may be certified to the Administrative Appeals Office.