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 US establishing E visa eligibility. An E visa 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. But in certain circumstances, such as difficulty in traveling to a US post overseas, it may be necessary to file an E application with USCIS from within the US. E visa timing, procedures and standards can vary widely from consulate to consulate.

Company and Employee Eligibility for E Visa

To obtain an employee E Visa, an E enterprise must provide detailed information. This usually includes:

• Updated financial and other 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 E applicant has the same nationality as the E company 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 business policy and direction. A supervisory position therefore charges an employee with responsibility for a significant proportion of an enterprise’s operations.

Factors to be considered in assessing E visa eligibility 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

Essential employees should have skills and/or aptitudes that are vital to the successful or efficient operation of the treaty enterprise.

In particular, a US Consular Officer or USCIS Examiner 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 applicant must provide substantial documentation regarding their investment and its source. They must also provide a business plan so that the examiner can understand current and projected revenue and expenses.

An individual or small business E-2 Investor Visa application must show their investment is substantial and not marginal. The E visa regulations prescribe no particular initial investment, but this should be enough to make the enterprise operational. E-2 investors may use retained earnings to show on-going investment into the E enterprise. If an initial investment is relatively small, it is important to show that it is likely to produce a substantial economic contribution to the US.

Investments in a business that merely provides an E-2 Investor Visa applicant with living expenses will not qualify. Moreover, investments in businesses that do not intend to employ US workers, at least at some point down the road, 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 enterprise remains viable. Or, in the case of an E-1, they must show that 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. Periods of admission to the US as opposed to validity of the visa itself are 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. They 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.

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. The process normally takes about several 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 do 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.