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Chapter 3 - E-1 and E-2 Visas for Traders and Investors
by Mark A. Ivener

  2. The E visa can be used by companies owned by a single investor as well as by large multinational companies. It is also available to key foreign personnel of companies that are Treaty Foreign National (TFN) owned within the requirements listed below. TFNs are from the following countries:

    Countries with Treaties for E-1 Visas

    Argentina, Aruba, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Gibraltar, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Netherlands Antilles, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Serbia Montenegra, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Yugoslavia, Wallis & Futura Islands.

    Countries with Treaties for E-2 Visas

    Albania, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bangladesh, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Gibraltar, Grenada, Haiti, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Mozambique, Netherlands, Netherlands Antilles, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Russian Fed., Senegal, Serbia Montenegra, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Uzbekistan, Yugoslavia, Wallis & Futura Islands. Countries awaiting Ratification Nicaragua (E2), El Salvador (E2), Bolivia (E2)

    * Note that the above may change without notice. Please check with the State Department for recent changes.

    THE E-1 VISA

    To qualify for an E-1 trader visa, a foreign business person must be seeking entry into the United States to carry on "substantial trade in goods or services in a capacity that is supervisory or executive or involves essential skills." E-1 visas were previously restricted to a trade of goods and specific services, including banking, finance, and the airline industry. This limited definition of services has been greatly expanded so that trade can be in goods or services without specification or restriction.

    The term "trade" means the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include but are not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.

    As a TFN, you may be issued a treaty trader (E-1) nonimmigrant visa if all of the following requirements are met:

    1. You or your firm is a TFN (at least 50% of the company stock is owned by TFNs),
    2. You enter the United States to carry on substantial trade (more than 50%) between your U.S. business and a TFN country; it does not matter if your TFN company is engaged primarily in trade with countries other than the United States,
    3. The trade is already in existence at the time you apply for E-1 status,
    4. You engage in executive or managerial duties or possess special skills that make your services essential to the employer's operations,
    5. You confirm you will leave the United States upon termination of this status.

    THE E-2 VISA

    To qualify for an E-2 investor visa, the applicant must "develop and direct operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital." As a foreign citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met:

    1. You or the firm are TFNs (at least 50% of the company stock is owned by TFNs)
    2. You or the firm for which you work will invest or have invested substantial capital (generally in excess of $100,000) which is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States. The term "substantial" means:
      1. The investment must be significantly proportional to the total investment (usually more than half of the value of the business), or
      2. An amount normally considered necessary to establish a new business.

    3. You engage in executive or managerial duties or possess special skills that make your services essential to the employer's operations.
      1. An executive position provides the employee great authority to determine the policy of and direction for the business or a major component of the business. The executive functions must be the primary functions of the employee, and not just incidental or collateral to other duties.
      2. A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise' operations or a major component of the enterprise. It does not involve the supervision of low-level employees. The supervisory element of the employee's position must be a principal and primary function, and not an incidental or collateral function.
      3. The essential nature of an alien's "special skills" is determined by assessing the degree of proven expertise of the alien in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the on templated duties, and the salary the special expertise commands. The consular officer must be convinced that the nature of the respective employment is such that the alien's eventual replacement by a U.S. worker is not feasible or that the employer is making reasonable and good-faith efforts to recruit and/or train U.S. workers to perform the job.

    4. The investment is not marginal (not your sole means of support and/or the goal of the investment is to create jobs for U.S. citizens or permanent residents)
    5. The investment enterprise actually exists or you are actively in the process of investing
    6. You confirm you will leave the United States upon termination of this status.

  4. Trader and investor visas must be applied for at a U.S. Consulate with a visa application. An interview is conducted by a U.S. consul who is well versed in the rules and regulations pertaining to E visas. For the correct forms and the time for adjudication of your E visa application, check with the U.S. consulate where you intend to apply.

  6. E visas are generally issued for a five year period and can be reissued (formerly called revalidation) through either a U.S. consulate or the Department of State for a time equal to that originally issued. Admission for each entry to the United States during the life of the visa is granted for a period of two years. Extensions may be obtained for up to two years at a time from the Immigration and Naturalization Regional Service Center having jurisdiction over the place the business is located. Traders and investors can remain in the United States indefinitely as long as they maintain their eligibility and treaty status.

  8. A spouse and unmarried minor children are eligible for E visas and can also enter under this category but without work permission, even though unauthorized employment will not cause their deportation as in the case of a spouse or child who holds a B, TN, H or L visa. Servants of the E visa holder can be issued B-1 visas with work authorization.

About The Author

Mark Ivener has been practicing law in Los Angeles for 30 years. He has lectured on U.S. immigration law for the World Trade Institute in New York, Houston, Chicago, and San Francisco. He has also lectured for the International Bar Association in Munich, Madrid, and New York. Mr. Ivener has participated in many immigration seminars for the Law Societies of British Columbia and Alberta and the American Immigration Lawyers Association.

He has authored the books, Handbook of Immigration Law, Volumes I and II [1980; 2nd edition, 1982; and 3rd edition, 1986; Online edition, 1999]; Doing Business in the U.S.A. Under Free Trade [1989; 2nd edition, 1990]; Get The Right Visa [1992; 2nd edition 1994]; A Complete Guide To Getting An American Visa (in Japanese) 1993; 2nd edition 1994; 3rd edition 1997]; and Have You Thought About Immigrating To The U.S.? (in Spanish) [1995]. He has also written many articles on immigration law which have appeared in the International Law Journal, the Canadian-American Bar Association Newsletter, Business and the Law and World Trade Trends.

Mr. Ivener is a founding member of IMMLAW, The National Consortium of Immigration Law Firms. Also, Mr. Ivener is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers.

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