E-1 / E-2 Visas
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for a temporary stay or an immigrant visa for permanent residence. The visa allows a foreign citizen to travel to a U.S. port of entry and request permission of the U.S. immigration inspector to enter the United States. Nonimmigrant visas ("NIVs") are issued to individuals who intend to remain in the United States temporarily. NIVs are designated by letters of the alphabet. The type of visa a foreign national is issued depends principally upon the nature of the foreign national's proposed activities in the United States, the duration of those activities, and in some instances, his or her nationality. It is often easiest to understand NIVs and their limitations, criteria, and characteristics by distinguishing them in terms of the principal activity authorized by the visa: (a) employment-based NIVs; (b) NIVs for students and exchange visitors; (c) NIVs for business visitors and tourists; and (d) other NIV categories including diplomats, international civil servants, and family relatives.
Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Most of these visas require the prospective employer to first file a petition with the U.S. Citizenship and Immigration Services ("USCIS"). An approved petition is required to apply for a work visa.
E-1 Treaty Traders and E-2 Treaty Investors
The E-1 (Treaty Trader) and E-2 (Treaty Investor) visa categories allow a foreign national to enter the United States to conduct trade or to work in an enterprise that constitutes a substantial investment in the United States, provided that the United States has a bilateral investment treaty with the nonimmigrant's country of nationality. The United States currently has treaties with a large number of countries allowing the entry of treaty traders and investors. E visa status is distinctive in that it can be used by employees of large foreign corporations, as well as by foreign nationals who are entrepreneurs coming to the United States to set up a relatively small business. For a foreign national to obtain E status, the existing or proposed trade or investment company must qualify as an "E company." The factors in qualifying as an E company include the nationality of the owners of the enterprise, the value and volume of the proposed international trade or investment, the nature of the commodity or service, and the extent to which an investment (for E-2 status) is actually at risk. Individuals seeking E-1 or E-2 status based upon employment in the United States with a qualified E company must be nationals of the treaty country, and must be coming as an executive, manager, supervisor, or essential employee of the E company. E visas are obtained only through an application filed directly with the U.S. Consulate in the treaty country. No pre-approval is obtained from the USCIS. For first-time applications, consular officers review the eligibility of the company and the individual(s) seeking E status. Once the company is registered as qualified, no further review of the company’s qualifications is necessary and the process for successive employees is more streamlined. Upon issuance of an E visa, an employee may enter the United States, present the visa at the port of entry, and be admitted in E-1 or E-2 status for the exclusive purpose of working for the E-qualified company.
E-2 Investors can get E-2 derivative visas for spouses and children under 21. The spouse of an E-visa holder may obtain an unrestricted employment authorization document ("EAD"). All parties may attend school in the U.S.
There are six key requirements for the E-2 visa:
1. You Must Be a National of a Treaty Country
The E-2 Investor Visa is only available to people from the countries that the U.S. has a treaty with. Many Western countries are on the list but there are also countries from Africa, Asia, and the Middle East on the list. A complete list of the countries on the list can be found here.
2. You Must Have Invested or Be Actively in the Process of Investing
In order to satisfy this part of the test, you must fulfill three requirements:
(a) Show Legitimate Possession and Control of the Funds
You must invest funds that you have obtained by lawful means. While dollar-for-dollar accounting is not required, you must prove to the government that you either saved the money, were given the money as a gift, or legitimately earned the money. There are various forms of proof that will satisfy this requirement including tax returns, bank statements, investment accounts, and more. For some countries, this can be problematic if records are not readily available or the country is subject to a high degree of corruption.
(b) All Funds Invested are "At Risk" and Irrevocably Committed
All of the assets invested must be personal assets subject to risk of loss and this really means that you actually have something to lose. Loans are fine but you must be on the hook if there is a loss and this requirement forces you to sign contracts and/or spend money prior to the approval of the visa (e.g., a one-year office space lease). At-risk money does include credit card debt or other loans as long as those debts are not secured by business assets or in the name of a limited liability business.
(c) You Must Be Close to the Start of Business
While you cannot accept money from clients or "do business" until the visa is approved, you must be close to starting your business. The idea here is that the U.S. government does not want to approve visas for people who may set up a business in the U.S. or who have a desire to start a business. As such, your business must be at the start-up ready phase. This means you should have a signed lease, your business bank account should be set up, you should have a website, and you should have purchased whatever you need to get the business up and running.
3. You Must Be in a Position to Develop and Direct the Business with Skills
You cannot get the E-2 visa unless you are the one who is going to direct and run the business. Also, you must have the appropriate skills set such that the government has faith that the business will be viable. For example, you would likely not have much success getting an E-2 visa if you wanted to open a restaurant if the only experience you had was eating in a restaurant. Normally, your educational background and experience should suggest that you will be in a position to make the business a success.
4. Your Investment Must Be Substantial
The U.S. Government does not have a predetermined amount that they consider "substantial." As such, your investment could be as low as $15,000.00 or as high as in the millions. You should note that idle cash sitting in a business account is not considered an investment but the government will consider a reasonable amount of working capital as part of an investment. You should ensure that you keep records of all of your expenditures as the government will want to see them.
5. Your Investment and Business Cannot Be Marginal
This means that the business cannot be set up so that it provides a means of living just for yourself and your family. You can demonstrate that a business is not marginal by putting together a business plan that shows growth over a five-year period or by showing that you plan to hire employees in the future.
6. You Must Intend to Return to Your Home Country After Expiration
This is not a difficult test to meet and all you must do is sign a document indicating that you plan to return home once your visa expires. Unlike many other visas, you do not have to show any ties to your home country.
Applying for a Visa
Applicants for visas should generally apply at the nearest U.S. Embassy or Consulate in the country where they live. It is important to apply for a visa well in advance of a planned travel departure date.
Completing Form DS-160, Online Nonimmigrant Visa Application, is the first step in the visa application process. After you have submitted Form DS-160, print the confirmation page and bring it to your interview. Next, pay the non-refundable visa application fee, if you are required to pay it before your interview. Then, make an appointment for an interview at the U.S. Embassy or Consulate where you pay to apply for your visa. You can learn how to schedule an appointment for an interview, pay the application processing fee, review embassy-specific instructions, and much more by visiting the website of the U.S. Embassy or Consulate where you will be applying. The wait time for an interview appointment for applicants can vary, so early application is strongly encouraged. During the visa application process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer.
This petition is a document-intensive application and you must provide documentation to support all of the elements outlined in the E-2 visa requirements.
No assurances regarding the issuance of visas can be given in advance. Therefore final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.
Unless canceled or revoked, a visa is valid until its expiration date. If your passport expires, you may use the valid visa for travel and admission to the United States along with your new valid passport containing the same biographic data. Do not remove the visa page. Instead, carry both passports together.
If processed as a change of status, the E-2 validity will generally be two years. If processed at a consulate, the visa can be valid for up to five years but the actual time will depend upon the reciprocity agreement between countries and the decision taken by the consulate. As long as the business is still in operation, you can renew the visa indefinitely.
If the consular officer finds it necessary to deny the issuance of a visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.