Generally, E Visas are available to certain foreign individuals who are engaged in substantial trade with the United States or are involved with a substantial investment in the United States, if the U.S. has entered a treaty for investment or trade with their country. Individuals may also apply for an E-1 or E-2 Visa [1], if they are an executive, a supervisor, or an employee who has special qualifications that are essential to the efficient operation of the business of a qualifying treaty company, pursuant to 8 CFR § 214.2(e)(3). E-3 Visas are available to “specialty workers,” from Australia who a will be employed by a company in the U.S.
The E-1 and E-2 visa categories were designed to give effect to trade and investment treaties between the United States and foreign nations, and to provide reciprocal benefits to the individuals of the nations that are party to the treaties. In this way, it facilitates commercial interaction between the U.S. and those countries that have signed the treaties. Similarly, in 2005, Congress enacted a free-trade law for Australia, which allows “specialty workers,” from that country to receive visas to work temporarily in the U.S.
Applying for an E Visa is a complex process. There are two categories of E Visas available under 8 CFR § 214.2(e), and each has its own set of requirements that must be met to qualify.
Once an E Visa is granted, it can be renewed for as long as the foreign investor, trader or employee can show that they are still engaging in the business activities that brought them to the U.S., or that they obtained an approval from USCIS if their activities are significantly different.
If you want to apply for an E Visa, our immigration attorneys can help you evaluate your legal options and determine the best strategy to give your application the best chance of success. For a case consultation, contact FitzGerald Law Company at 617-303-2600.
Qualifying to Obtain an E Visa for the United States
An individual who is a citizen of a qualifying “treaty” country, may apply for an E-1 or E-2 visa, and a “specialty worker” from Australia may apply for an E-3 visa, in the United States; if they entered on a valid non-immigrant visa and are within the time permitted on their I-94 Form or any extension or change approved by USCIS.
The individual must also have evidence that they qualify for the specific visa category they are applying for, either E-1 Treaty-Trader visa or E-2 Treaty-Investor visa [1], a qualified E-1 or E-2 employee visa, or an E-3 specialty worker visa. A Form I-129 may be filed with USCIS to change status to an E-1, E-2, or an E-3 visa holder and the term of the visa is generally 2 years from the date of its approval.
The approval of an E Visa in the U.S. will allow the individual to remain in the United States to invest or engage in trade, however if they travel outside of the U.S. they generally will be required to obtain a visa stamp in their passport before they return.
Who is Eligible for an E-1 Treaty Trader Visa?
Individuals who are citizens of a nation that has signed a trade treaty with the United States may apply for an E-1 Visa for treaty traders if they intend to carry on or engage in “substantial” trade between their country and the U.S. This includes trade in services or trade in technology, as well as the trade in traditional products and goods. The treaty trader’s business must be principally between the U.S. and the foreign state which has signed the appropriate treaty and of which the individual is a citizen.
The concept of “substantial trade” in the context of Treaty-Trader visas refers to the ongoing flow of goods and services between the United States and the applicant’s qualifying treaty nation. It is essential that this trade or exchange has been initiated prior to the submission of the E-1 Visa application, however, this may include binding signed contracts for trade.
For trade to be deemed “substantial,” it must primarily occur between the United States and the foreign “treaty” country. Specifically, a minimum of 50% of the total trade conducted by the applicant or their enterprise must involve commerce between the United States and the treaty nation.
In addition to the owner of a trade enterprise, an employee who will perform services that require special qualifications essential to the operations of the enterprise can obtain an E-1 visa if they have the same nationality as the majority owners of the treaty business and the employer is willing and has the financial ability to sponsor them.
Who is Eligible for an E-2 Treaty Investor Visa?
Individuals who are citizens of a nation that has signed an investment treaty with the United States may apply for an E-2 Visa as a treaty investor. An individual may apply for an E-2 Visa in order to come to the U.S. or remain in the U.S., solely to develop and direct the operations of an enterprise in which they have invested or have initiated the process of investing.
In order to qualify for an E-2 Visa, the individual must demonstrate that the amount of the capital investment is substantial, and the investment will be at risk. In addition to an investor, an employee who will perform services that require special qualifications essential to the operations of the treaty investor enterprise, can obtain an E-2 visa if they have the same nationality as the owners of the majority of the shares of the treaty investor business, and the employer is willing and financially able to sponsor them. The person applying for an E-2 visa must also show an intention to depart from the U.S. upon the termination of their status.
How the U.S. Determines Substantial Business for E-2 Visas
The definition of “substantial” concerning the investment required for an E-2 visa is at the discretion of the Secretary of State or the USCIS Official who is adjudicating the petition. The state department has repeatedly stated that: “there is no fixed amount of investment which is considered ‘substantial.’ A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test.”
The proportionality test serves as a guideline for the Secretary of State to assess the appropriate investment required for different types of investment enterprises (See Dept. of State, U.S. Mission New Zealand 6-25-2019). This guideline establishes that:
- For investment enterprises valued at less than $500,000.00, an initial capital investment of 75% is expected.
- For investment enterprises valued between $500,000.00 and $3,000,000.00, an initial capital investment of 50% is expected.
- For investment enterprises valued at more than $3,000,000, an initial capital investment of 30% or a flat 1 million dollars is expected.
Moreover, it is important to note that for all investment enterprises supporting an E-2 visa petition, the initial capital investment must not be considered “marginal.” This means that it should have the capacity, both presently and in the future, to sustain the business and generate an income that exceeds a mere living wage for the investor and their family. These criteria ensure that the investment has a substantial impact and contributes significantly to the U.S. economy.
It is important to understand, that while the general guidelines listed above are used to a degree by the Department of State, each case is nevertheless, evaluated individually by the government. The government will assess in each situation whether the investment is substantial, as a percentage of the fair market value of the enterprise, or as a percentage of the capital usually required to establish the specific type of business in the specified industry.
Who is Eligible for an E-3 Visa?
A individual is eligible for an E-3 visa if they are Australian, have an offer of employment with a company in the U.S. for a position that qualifies as a specialty occupation (a position that generally requires a bachelor’s or higher degree), and has an approved LCA from the U.S. Department of Labor.
What is the Duration of an E Visa?
The initial statutory limitation on the period of stay for an alien with an E-1 Visa, E-2 Visa or E-3 Visa is generally two years. However, it is not uncommon for the U.S. Consulate to issue an E-1 or E-2 visa for up to five years. Fortunately, the initial E Visa period can be extended as long as the foreign national demonstrates the continued viability of their business, or their continued qualifying employment and compliance with the conditions of the visa.
Our Immigration Attorneys for E Visas Can Help
To learn more if you or your employee qualify to apply for an E Visa, speak with our immigration attorneys [2] at FitzGerald Law Company to assess the case. Call us today at (617) 303-2600.