E-1 and E-2 Visas for Foreign Investors and Traders
E-1 and E-2 visas are available for use by investors and traders. Type E visas can be obtained either by companies owned by a single investor as well as by large multinational companies. They are also available to key foreign personnel of companies that qualify as owned by Treaty Foreign Nationals (TFN) as described further below.
The E-1 Visa
An E-1 trader visa is available for a foreign business person seeking entry into the United States for the purpose of carrying on “substantial trade in goods or services in a capacity that is supervisory or executive or involves essential skills.” E-1 visas were previously restricted to a trade of goods and specific services, including banking, finance, and the airline industry. This harrow definition of services was been greatly expanded under NAFTA so that trade can be in goods or services without specification or restriction:
The term “trade” now is interpreted to mean the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include but are not limited to banking, insurance, transportation, communications and date processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.
For purposes of being issued an E-1 visa, a company may qualify as Treaty Foreign National or TFN if all of the following requirements are met:
- You or your firm is a TFN (at least 50% of the company stock is owned by TFNs);
- You enter the United States to carry on substantial trade (more than 50%) between your U.S. business and a TFN country; it does not matter if your TFN company is engaged primarily in trade with countries other than the United States;
- The trade is already in existence at the time you apply for E-1 status;
- You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations; and
- You confirm you will leave the United States upon termination of this status.
For purposes of E-1 Visas, countries that qualify for TFN treaty status are as follows: **
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Korea (South), Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, and United Kingdom.
The E-2 Visa
To qualify for an E-2 investor visa, the applicant must “develop and direct operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital.” As a foreign citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met:
- You or the firm are TFNs (at least 50% of the company stock is owned by TFNs);
- You or the firm for which you work will invest or have invested substantial capital (generally in excess of $100,000) that is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States. The term “substantial” means:
i) The investment must be significantly proportional to the total investment (usually more than half of the value of the business), or
ii) An amount normally considered necessary to establish a new business.
- You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations.
i) An executive position provides the employee great authority to determine the policy of and direction for the business or a major component of the business. The executive functions must be the primary functions of the employee, and not just incidental or collateral to other duties.
ii) A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise’s operations or a major component of the enterprise. It does not involve the supervision of low-level employees. The supervisory element of the employee’s position must be a principal and primary function, and not an incidental or collateral function.
iii) The essential nature of an applicant’s “special skills” is determined by assessing the degree of proven expertise of the applicant in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the contemplated duties, and the salary the special expertise commands. The consular officer must be convinced that the nature of the prospective employment is such that the applicant’s eventual replacement by a U.S. worker is not feasible or that the employer is making reasonable and good-faith efforts to recruit and/or train U.S. workers to perform the job.
4. The investment is not marginal (not your sole means of support and/or the goal of the investment is to create jobs for U.S. citizens or permanent residents).
5. The investment enterprise actually exists or you are actively in the process of investing
6. You confirm you will leave the United States upon termination of this status.
For purposes of the E-2 Visa, countries with treaties to qualify for TFN status are as follows: **
Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia & Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Rep, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, and United Kingdom
** Note that the above may change without notice. Also, see the State Department’s website for changes.
General Process for Type E Visa Application
Trader and investor visas must be applied for at a U.S. consulate with a visa application.
An interview is conducted by a U.S. consul who is well versed in the rules and regulations pertaining to E visas. For the correct forms and the time for adjudication of your E visa application, check with the U.S. consulate where you intend to apply.
Spouses and Minor Children
A spouse and unmarried minor children are eligible for E visas and can also enter under this category but without work permission, even though unauthorized employment will not cause their deportation as in the case of a spouse or child who holds a B, TN, H or L visa. Servants of the E visa holder can be issued B-1 visas with work authorization.
Duration of the Visa
E visas are generally issued for a five-year period and can be reissued (formerly called revalidation) through either a U.S. consulate or the Department of State for a time equal to that originally issued.
Admission for each entry to the United States during the life of the visa is initially granted for a period of one year. Extensions may be obtained for up to two years at a time from the Immigration and Naturalization Regional Service Center having jurisdiction over the place the business is located.
Traders and investors can remain in the United States indefinitely as long as they maintain their eligibility and treaty status.