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 US establishing E eligibility. Applicant must also be a principal investor or key employee with 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 E company to work in the US.
Qualifying E investors and their employees may file E visa applications with a US consulate abroad. US Consulates have primary decision-making authority over an E visa application. No USCIS application is necessary. E visa timing, procedures and standards can vary widely from consulate to consulate.
An applicant may file an E application or renewal with USCIS in the US. But this is not normally advisable for various reasons. First, USCIS-approved E applicants must re-submit all documentation to a consulate abroad for visa issuance prior to re-entry to the US. The Consulate will review the E Visa application de novo. Consulates have complete authority to overturn previous USCIS decisions on E visas.
To obtain an employee E Visa, 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 in assessing a particular E visa position and an E visa applicant include:
In the E visa context, essential employees with “special qualifications” are individuals 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 the E visa, an individual applicant generally must provide substantial documentation regarding his/her investment and its source. She also should provide a detailed business plan including information on revenue and expenses and documentation of her ability to direct the 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, adjudicators have become more open to smaller investments. This is because they want to accommodate entrepreneurs who may have a valuable idea, but who may not have substantial initial capital. The key is to show the initial investment, even if modest, was enough to make the enterprise operational. E-2 investors may also use retained earnings to show on-going investment into the E enterprise. In such situations, it is important to show that the investment, although small initially, is likely to produce a substantial economic contribution to the US.
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 it is far beyond that necessary to support the Principal E-2 Visa applicant and any dependents. Moreover, investments in businesses that do not intend to employ US workers 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 Visa holder’s country of nationality.