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Visas for Foreign Investors (Type E)

E-1 and E-2 Visas for Foreign Investors and Traders

General Eligibility

JACE-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:

  1. You or your firm is a TFN (at least 50% of the company stock is owned by TFNs);
  2. 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;
  3. The trade is already in existence at the time you apply for E-1 status;
  4. You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations; and
  5. 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:

  1. You or the firm are TFNs (at least 50% of the company stock is owned by TFNs);
  2. 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.

  3. 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.

Immigration News from ILW.COM

FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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