The E-visa category was created to encourage international commerce between American and foreign traders and investors. An individual may qualify for an E-visa if the individual is a national of a country that has a commercial trade treaty with the U.S., and the individual is entering the U.S. to trade with or invest in an American business.
If the individual’s E-visa is approved, the USCIS grants the individual nonimmigrant status to remain in the U.S. The investor’s spouse and children (under 21) are also allowed to accompany the investor. The E-visa initially lasts 5 years, but the individual may apply for a 2-year extension of status. Note that the USCIS does not limit the number of times an individual can renew an E-visa. Therefore, an individual can remain indefinitely in the U.S. under E-1 or E-2 status.
What Type of Individual Qualifies for an E-Visa
Typically, an individual must be coming to the U.S. to engage in “executive” or “supervisory” duties. Otherwise, the individual must have “special qualifications” that make the individual necessary to the company’s efficient operation. The USCIS has stated that an individual’s job title is not dispositive of whether an individual is an executive or supervisor. Instead, the USCIS engages in a holistic analysis to determine whether an individual is actually an executive or supervisor by considering multiple factors, including:
- » The individual’s title and salary;
- » The individual’s required duties, including the individual’s degree of decision making and the number of employees the individual supervises;
- » Where the individual’s title or position is located in the company structure or hierarchy.
The USCIS applies a similar analysis to determine whether an individual has special qualifications that warrant an E-visa. The USCIS considers multiple factors including:
- » The individual’s title and salary;
- » The individual’s specialized training and experience;
- » The individual’s duties at the company, and whether these duties are essential for the company’s operation;
- » Whether the individual’s skills are unique or highly specialized.
There are generally two types of E-visas: E-1 for Treaty Traders, and E-2 for Treaty Investors. E-1 Treaty Trader Visa This visa is for individuals who wish to enter the U.S. to engage in trade or to establish trade ties between U.S. companies and companies of the foreign national’s country.
The trade must already exist when the individual applies for an E-1 visa – i.e. there needs to be an actual contract. Mere negotiations or preliminary discussions are insufficient.
Requirements To qualify for an E-1 visa:
- » The individual must be a national of a country that has a trade agreement or treaty with the United States;
- » If the individual is in the U.S. on behalf of a foreign employer, that employer must also be a ntional of a treaty country. If the individual’s employer is in the U.S., the employer must also maintain treaty trader or investor status. Note that if the individual is employed by a company located in the U.S., at least 50% of company must be owned by nationals of a treaty country;
- » The trading must be “substantial.” “Substantial” refers to a constant pattern of transactions that evidences an active business, not necessarily transactions of large monetary value;
- » Trading can involve services, goods, or technology. This is broadly interpreted and can include tangible goods, international banking, e-commerce transactions, and transportation;
- » The trading must primarily be between the U.S. and the treaty country, which means at least half of the total trading activity.
E-2 Treaty Investor Visas
An individual can acquire an E-2 visa if the individual is entering the U.S. to invest in a continuing commercial enterprise. Note that E-2 Treaty investors should be distinguished from EB-5 immigrant investors. Unlike EB-5 visas that grant conditional residency, an E-2 only confers nonimmigrant status.
Requirements To qualify, the investor must establish the following: (1) the individual is a national of a treaty country; (2) the individual has a “substantial investment” or plans to substantially invest in a “real, continuing commercial enterprise”; and (3)the individual is coming to America to develop the investment.
- » The investor must establish that the investment is funded by lawfully obtained capital;
- » The investment must be an “at-risk” investment. This means that the investment must be active, with the potential to produce a profit. Therefore, the investment cannot be primarily a charitable organization, nor would a passive investment (such as merely purchasing a building) qualify.
- » Though there is no minimum requirement for a “substantial investment,” the general rule is that the less the business is worth, the greater the percentage the investor must own.
Filing Procedures for E-Visas
An individual applying for either an E-1 or E-2 visa must submit a DS-156 Form and the accompanying DS-156E questionnaire to the American consular office of the treaty country – no prior INS approval is required. Also, documents supporting the DS-156 Form should also be filed, including:
- » Evidence of an established trade or investment, such as a business contract;
- » Financial documents detailing the source of the individual’s funds, and what the individual plans to trade or invest in;
- » Proof of an active, ongoing business such as lease or purchase agreements, or copies of a company’s articles of incorporation;
- » A description of the individual’s employment position, including job title, salary, duties, experience, and training;
- » A description of the trader or investor’s future business plans.