The E visa category allows foreign nationals to come to the United States pursuant to a treaty between their home country and the United States and engage in activities as an E-1 treaty trader, as an E-2 treaty investor, or as an executive, supervisory, or essential employee of a company that is a treaty trader or investor (E-1 or E-2). The treaties were intended to enhance and facilitate friendship and commerce between the United States and the treaty country. In order to qualify for one of these visas, there must be a treaty between the United States and the country of the foreign national’s nationality.
E-1 Treaty Traders
The E-1 visa allows a foreign national of a treaty country to set up a company in the U.S. which trades between the foreign country and the U.S. At least 50% of the trade in which the company is involved must be between the treaty country and the U.S. The foreign national is allowed to come to the U.S. to manage the company so long as the trade continues. The trade must be international, actual, meaningful, and substantial. The traded items may include goods or certain services (e.g., international banking, insurance, etc.).
The trade must be between the U.S. and a qualifying country. The list of the E-1 treaty countries currently include: Argentina, Australia, Belgium, Bolivia, Bosnia and 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, Poland, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, and Yugoslavia.
E-2 Treaty Investors
The E-2 visa allows a foreign national of a treaty country, or a company owned by nationals of the treaty country, to make an investment in a U.S. company. The U.S. company must be bona fide and the investment must be substantial. The amount invested must not be marginal. The investment must be “at risk” and not prospective. There is no set amount for an investment. The amount of the investment must have a solid relationship to the amount required to fully capitalize a company of the size and type in the industry in which the treaty investor will be operating.
There must be a treaty between the U.S. and the qualifying country. The list of the E-2 treaty countries currently include: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Iceland, 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 Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.
Some treaties allow for E-1 and E-2 status, but not both. The foreign national needs to be aware of these restrictions and contact an experienced practitioner for preliminary planning prior to making any investments.
In either the E-1 or E-2 visa situation, it is important to develop a detailed business plan to show the company’s initial and future operations. The business plan will need to outline plans for growth and include plans for employment of U.S. workers. The potential investor seeking an E-2 visa will need to prove the source of the investment and to prove that he/she owns the funds invested. The E-1 applicant will need to be able to verify the amount of trade between the U.S. and the treaty company.
Employees of E-1 and E-2 companies
If a foreign national is of the same nationality as his/her “E” employer, he/she may come to the U.S. to perform executive/supervisory duties or essential duties for that employer.
We suggest that the E-1 or E-2 applicants apply for an E visa at a U.S. consulate abroad. If the foreign national is in the U.S. in a different status, he/she can file a petition with USCIS requesting a change of status to an E visa. The foreign national will also need to show that his/her stay in the U.S. is temporary, although the foreign national may apply for extensions of his/her status so long as he/she continues to engage in appropriate activity. Spouses of E treaty traders and investors are eligible for employment authorization.
If you would like to pursue the E visa option for you and/or your employees, please contact our office so that we may assess your options and advise you as to the best course of action for you.
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