Kirberger PC: a boutique law firm providing US visa and immigration services since 1998.
RSS

 

Info

E Visa: E-2 Investor Visa, E-1 Trader Visa

golden egg 117672602 golden egg 117672602

golden egg 117672602 E Visa: E-2 Investor Visa, E-1 Trader VisaThe 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.

E Visa Procedures

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.

Company and Employee Eligibility for E Visa

To obtain an employee E Visa, an E enterprise must provide a substantial amount of detailed information, usually including:

  • Updated financial and other detailed company information.
  • A showing 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.
  • Demonstration that the prospective E-1 Trader Visa or E-2 Investor Visa Employee is qualified to perform 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 in assessing a particular E visa position and an E 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 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:

  • 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 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.

E Visa Validity Period and Extensions

  • One may extend an E Visa indefinitely. But applications must show that the investment remains viable. Or, they must show trading activity with the US continues at a substantial level.
  • An E-2 Investor Visa or E-1 Trader Visa is usually valid for 2 to 5 years, depending on various factors. Periods of admission to the US (as opposed to validity of the visa itself) is for up to 2 years.
  • USCIS may grant extension requests for up to 2 years. The E applicant must be physically present in the US at the time of filing. S/he must have maintained the terms and conditions of the E Visa at all times. However, a US consulate abroad must approve the E application should the E visa holder leave and re-enter the US.
  • With some exceptions, E visa employees who enter the US for start-up activities should finish those activities within 2 years. They usually will not obtain extensions.

E-2 Investor Visa and E-1 Trader Visa: Other Features

  • An E Visa does not necessarily establish a path to US Lawful Permanent Residence (Green Card). So, E visa holders who wish to become permanent residents must consider other options.
  • E- Visa dependents may apply to USCIS for blanket work authorization in the US on an annual basis. USCIS processes these requests. The process normally takes about 3 months from USCIS receipt of the application.
  • The E-2 Investor Visa and E-1 Trader Visa classifications were not designed for retirees, for philanthropists as such or for nonprofit organization employees. An E business must be an active business. Passive investments will not qualify. An E enterprise should create employment for US workers and/or provide some other kind of substantial economic benefit to the US.
  • E-2 Investor Visa or E-1 Trader Visa holders must intend to depart the US after E business activity ceases. However, approval of a PERM labor certification application or other immigrant petition is not a valid reason for denial of E visa renewals.
  • Individuals in other valid temporary visa categories may change status to E classification via application to USCIS.