Treaty Traders
or Investors - E Visa
By James E. Root , Esq.
Los Angeles, CA
The E visa category is available
to business owners and employees who need to remain
in the United States for extended periods of time
to oversee or work in an enterprise that represents
a major investment in, or substantial trade with,
the United States. In order to be eligible for an
E visa, there must be a Treaty of Friendship, Commerce
and Navigation between the United States and the
country of nationality of the foreign national.
E-1 VISA CATEGORY
To qualify for an E-1 trader visa, a foreign businessperson
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. NAFTA has since expanded the
scope 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 Treaty Foreign National (TFN), you may be issued
a treaty trader E-1 nonimmigrant visa if all of
the following requirements are met:
• You or your firm is a TFN (at least 50%
of the company stock is owned by TFNs)
• You enter the United States to carry on
substantial trade (more than 50%) between your US
business and a TFN country
• A treaty must already exist at the time
you apply for E-1 status
• You engage in executive or managerial duties
or possess special skills that make your services
essential to the employer's operations
• You promise to leave the United States upon
termination of this status
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
Montenegro, Slovenia, Spain, Suriname, Sweden, Switzerland,
Thailand, Togo, Turkey, United Kingdom, Yugoslavia,
Wallis & Futura Islands, Western Sahara.
E-2 VISA CATEGORY
To qualify for an E-2 investor visa, the applicant
must develop and direct operations of an enterprise
in which he has invested or is actively 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:
• You or the firm are TFNs (at least 50% of
the company stock is owned by TFNs)
• You or the firm for which you work will
invest or have invested substantial capital, 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).
2. An amount normally considered necessary to establish
a new business.
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's 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 a foreign national's
"special skills" is determined by assessing
the degree of proven expertise of the foreign national
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 contemplated duties, and the salary
the special expertise commands.
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 (Democratic
Rep. of the), Congo (Rep.), (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, Moldavia, Mongolia, Morocco, Mozambique,
Netherlands, Netherlands Antilles, Norway, Oman,
Pakistan, Panama, Paraguay, Philippines, Poland,
Romania, Serbia Montenegro, Slovakia, Slovenia,
Spain, Sri Lanka, Suriname, Sweden, Switzerland,
Thailand, Togo, Trinidad & Tobago, Tunisia,
Turkey, Ukraine, United Kingdom, Uzbekistan, Yugoslavia,
Wallis & Futura Islands, Western Sahara.
There is no limit as to the number of years an employee
can remain in valid E visa status. Procedurally,
a US Consulate in the treaty country generally reviews
E visa applications. Thus, these applications can
bypass review by the US Citizenship and Immigration
Services. In light of the annual shortages in H1B
visas, capped at 65,000 visas, E visa is often viewed
by many as an ideal alternative.
For more information and a “free” initial
legal consultation please contact Immigration Attorney
James E. Root at 1(888) ROOT-LAW or visit his website
at www.RootLaw.com. Mr. James E. Root heads an Exclusive
Immigration Law practice with two offices in Southern
California.
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