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-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.
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:
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:
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:
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.
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.