E visas are available to foreign nationals from countries which have a treaty of friendship, commerce and navigation, a Bilateral Investment Treaty, or other arrangements (NAFTA) with the U.S. The E visa category is divided into two categories, the E-1 category for “Treaty Traders”, and the E-2 category for “Treaty Investors.” Not all countries are members of both E-1 and E-2 treaties. Therefore, a foreign national who is from a country that has an E-1 treaty with the U.S., but not an E-2 treaty, may only be eligible for an E-1 visa. If the foreign national’s country has an E-2 treaty with the U.S., but not an E-1 treaty, the individual would only be eligible for an E-2 visa. A list of E-1 and E-2 treaty countries is published on the U.S. Department of State’s website. To access this list, visit the following link: travel.state.gov
The E-1 category is designated for foreign nationals seeking to enter the U.S. to engage in international trade. In order for a foreign national to qualify for an E-1 visa, the trading firm for which the individual is coming to the U.S. must be at least 50% owned by nationals of the treaty country. The trade must be principally (more than 50%) between the U.S. and the treaty country and it must be of a substantial nature. The term “substantial” is defined as “an amount of trade sufficient to ensure the continuous flow of international trade between the U.S. and the treaty country.”
The E-2 category is designated for foreign nationals seeking to enter the U.S. to further a substantial investment in a U.S. enterprise. The E-2 visa requirements are similar to the E-1 visa requirements. Like E-1 visas, the investment enterprise must be at least 50% owned by nationals of the treaty country. The investment must also be substantial. For E-2 purposes, this means the investment must be sufficient enough to ensure financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the E-2 candidate will successfully direct and develop the enterprise. A marginal investment will not meet the applicable standard for E-2 visas. Investments which do not have the present or future capacity to generate more than a minimal living for the investor and the investor’s family are considered marginal in nature. Moreover, the investment funds must have been lawfully acquired and placed at risk with the objective of earning a profit. The investment cannot be passive.
If the foreign national is not the principal trader (for E-1 visas) or the principal investor (for E-2 visas), he or she must be employed as an executive, supervisor, or person whose services are essential to the successful and efficient operation of the enterprise. E-1 and E-2 employees must have the same nationality as the treaty employer.
If an E-1/2 candidate is in the U.S. in valid status, the investment or trading enterprise can generally file a petition with USCIS. The processing times for E-1/2 petitions can vary a great deal. However, premium processing service is available for E-1/2 petitions. This requires an additional $1,225 filing fee and guarantees a 15 calendar day processing of the petition. Within 15 calendar days, USCIS will issue an approval notice, or if appropriate, a Request for Evidence. A request for premium processing service can be made either at the time of the initial filing or after the petition has been filed. If the E-1/2 candidate is abroad, he or she is required to apply for a visa directly at a U.S. embassy or consulate.
An E-1/2 petition may be approved for a period of up to two years and extended indefinitely in two year increments. The downfall is that E-1/2 visas are considered “non-immigrant visas”, and therefore, E-1/2 visa holders must maintain the intent to remain in the U.S. temporarily. An E-1/2 petition or application may be denied if the candidate is unable to demonstrate that he or she possesses non-immigrant intent. The spouses and children of E-1/2 visa holders are eligible for a dependent visa. Spouses of E-1/2 visa holders may apply for authorization to work, but children may not work.