E Visa: E-2 Investor Visa, E-1 Trader Visa
The E visa is for investors (E-2), traders (E-1), and qualified employees of non-US-owned companies. An E-1 Trader Visa or E-2 Investor Visa applicant must be a national of a country that has a commercial treaty with the United States establishing eligibility for the E Visa category, and must have principal investor or key employee status in the qualifying company. Alternatively, a firm majority-owned by nationals of an E treaty country may bring qualified executives, managers or essential employees with the same nationality as the majority owners to work in the US in E visa status.
E Visa Procedures
E-2 Investor Visa and E-1 Trader Visa applications are generally filed with a US consulate abroad. US Consulates have primary decision-making authority over whether to grant E-2 Investor Visa or E-1 Trader Visa status. No USCIS application is necessary. Timing, procedures and standards for E visas vary widely from consulate to consulate.
E-2 Investor Visas, E-1 Trader Visas and their renewals may be filed with USCIS in the US. However, this is not usually advisable, since all documentation must be re-submitted to a consulate abroad for visa issuance once an E-2 Investor Visa or E-1 Trader Visa holder leaves the US and prior to re-entry. The Consulate will review the E Visa application de novo, and they have complete authority to overturn a previous USCIS decision. In addition, in recent years, USCIS has begun to import the often more stringent and highly unpredictable EB-5 Immigrant Investor Visa standards into its adjudications of E-1 and E-2 petitions; this is another reason why USCIS is to be avoided when filing in the E Visa category.
Company and Employee Eligibility for E-1 Trader Visa or E-2 Investor Visa
To obtain an E-2 Investor Visa or E-1 Trader Visa for an employee, an E enterprise must provide a substantial amount of detailed information, usually including:
- Updated financial and other detailed company information.
- Evidence demonstrating that the position offered and the work to be performed by the prospective E-1 Trader Visa or E-2 Investor Visa employee requires executive, supervisory or essential skills.
- Evidence demonstrating that the work to be performed is consistent with the activity forming the basis of the E-1 Trader Visa or E-2 Investor Visa classification.
- Evidence that the prospective E-1 Trader Visa or E-2 Investor Visa Employee does in fact have the qualifications to perform such the job offered. And,
- Evidence that the prospective E-1 Trader Visa or E-2 Investor Visa Employee has the same nationality as the E company at which s/he will work in the US.
E-2 Investor Visa and E-1 Trader Visa Executive or Supervisory Positions
According to the E Visa regulations, an executive position provides an employee with broad authority to determine policy and direction of an enterprise. A position primarily of a supervisory nature provides an employee with supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.
Factors to be considered by a Consulate or USCIS Officer in assessing both a particular position and an E-2 Investor Visa or E-1 Trader Visa applicant include:
- Whether the E-2 Visa or E-1 visa applicant possesses appropriate executive or supervisory skills and experience.
- A salary and position title commensurate with executive or supervisory employment.
- Recognition or other indicators that the position is one of authority and responsibility in the overall organizational structure.
- Responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory employees. And,
- If the position requires some routine work usually performed by staff, such functions may only be of an incidental nature.
Essential Employees in the E-2 Investor Visa and E-1 Trader Visa Context
In the E-2 Investor Visa and E-1 Trader Visa context, essential employees with “special qualifications” are persons with skills and/or aptitudes that an employee in a capacity “lesser” than executive or supervisory brings to a position that are essential to the successful or efficient operation of the treaty enterprise.
In particular, a US Consular Officer or USCIS Examiner must consider factors including:
- An E-1 or E-2 Visa applicant’s degree of proven expertise in the area of operations involved.
- Whether others possess the applicant’s specific skill or aptitude.
- Length of E-1 or E-2 Visa applicant’s experience and/or training with treaty enterprise.
- Period of training or other experience necessary to effectively perform the projected duties.
- Relationship of skill or knowledge to enterprise’s specific processes or applications, and the salary the special qualifications can command. And,
- Finally, knowledge or command of a foreign language and culture do not alone meet the “special qualifications” requirement.
A reviewing officer or examiner must also consider whether the skills and qualifications are readily available in the US, noting also that skills and qualifications necessary at one point (such as start-up) may not be necessary at a different time.
Individual or Small Business E-2 Investor Visa or E-1 Trader Visa
To qualify for an E-2 Investor Visa or E-1 Trader Visa, an individual applicant generally must provide substantial documentation regarding his/her investment and its source, a detailed business plan that includes information on revenue and expenses (preferably over the coming 5 year period), as well as documentation of the applicant’s ability to direct the particular business.
An individual or small business E-2 Investor Visa application must demonstrate that the investment is substantial and not marginal (for individuals, we recommend a minimum investment of $200,000+; this amount can vary, depending on a variety of factors as well as the nature of the business involved).
However, in a push to accommodate entrepreneurs who may have a very valuable idea, but who may not have substantial capital to invest, US Consulates have become much more open to investors that can show that a smaller (less than $200,000) investment will produce a substantial return–that is, far beyond what is required to support the Principal Investor and his or her family in the US. The key is to demonstrate that the initial investment amount–even if that amount is very modest–was enough to make the enterprise operational. E-2 investors can also use retained earnings to demonstrate their on-going investment into the E enterprise.
Investments in a business that merely provides an E-2 Visa applicant with living expenses will not qualify (Consulates require a detailed personal budget for individual E Visa applicants). In addition, an E-2 Investor Visa applicant must not depend on income from the investment as his/her sole source of income unless such income is far beyond that necessary to support the Principal E-2 Investor Visa applicant and his/her dependents. Moreover, investments in businesses that do not intend to employ US workers (US citizens or permanent residents)–perhaps not immediately, but eventually–are unlikely to qualify for the E Visa.
E-1 Trader Visa applicants must document that the US business is conducting or will conduct regular trade in goods or services between the US and the E-1 Trader Visa holder’s country of nationality.
E-2 Investor Visa and E-1 Trader Visa: Other Features
- The E-1 Trader Visa or E-2 Investor Visa can be extended indefinitely, as long as the trading or investment activity in the US continues at a substantial level.
- An E-1 Trader Visa or E-2 Investor Visa does NOT necessarily establish a path to US Permanent Residence (Green Card) for principal investors and traders.
- Spouses of E-1 Trader Visa or E-2 Investor Visa holders may apply to USCIS for blanket work authorization in the US on an annual basis. USCIS processes Employment Authorization requests (Form I-765) for E spouses, and the process normally takes about 3 months from USCIS receipt of the I-765 application.
- The E-2 Investor Visa and E-1 Trader Visa classifications were not designed for retirees, for philanthropists as such or for the employees of nonprofit organizations. An E business must be an active business (passive investments will not qualify) that creates employment for US workers and/or provides some other kind of substantial economic benefit to the US.
- E-2 Investor Visa or E-1 Trader Visa holders must have the intent to depart from the US after E business activity ceases. However, approval of a PERM labor certification application or other immigrant petition for an E-2 Investor Visa or E-1 Trader Visa holder shall not be a valid reason for denial of E2 Investor Visa or E-1 Trader Visa renewal applications.
- An E-2 Investor Visa or E-1 Trader Visa is usually valid for a term of 2 to 5 years, depending on the consulate at which it is issued, the nature of the E business and the nature of the E employment. In recent years, the initial term is generally 2 years. Periods of admission to the US (as opposed to period of validity for the visa itself in one’s passport) is for up to 2 years.
- Requests for extensions filed with USCIS in the US are granted in terms of up to 2 years. The E-2 Investor Visa or E-1 Trader Visa applicant must be physically present in the US at the time of filing, and must have maintained the terms and conditions of his/her E Visa at all times.
- With some exceptions, E-2 Investor Visa or E-1 Trader Visa employees who enter the US for start-up activities will be expected to finish those activities within 2 years, and they usually will not be granted extensions.
- Individuals in other valid temporary visa categories may change status to E-2 Investor Visa or E-1 Trader Visa classification by making an application to USCIS with all relevant documents and other evidence.