The E visa is one of the most flexible employment-related nonimmigrant categories allowed under the law because it offers such advantages over other nonimmigrant visas as longer visa stays, self-employment and E-visa derivative beneficiary employment opportunities as well as lack of renewal limitations, requirement for previous employment history, as required for L visas, annual quotas and high filing fees. Section §101(a)(15)(E) of the INA defines E classification as follows:
[A]n alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if he accompanying or following to join him:
Solely to carry on substantial trade, including trade in services or technology, principally between the United States and the foreign state of which he is a national; or
Solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.
The E classification consists of two subcategories, E-1 for treaty traders and E-2 for treaty investors.
In addition to the statutory definition above, the Department of State (DOS) has a set of regulations on E visas as called out in 22 CFR §41.51, and the regulations of United States Citizenship and Immigration Services (USCIS) as set forth at 8 CFR §214.2(e). CFR §41.51 to Title 9 of the Foreign Affairs Manual (FAM) is also extremely beneficial when visa applicants apply abroad.
E-1 and E-2 Visa Requirements
Treaty. To qualify for an E visa, a treaty of freedom, commerce and navigation (FCN) or bilateral investment treaty (BIT) must exist between the United States and the alien’s home country. In addition, a foreign state that possesses treaty visa privileges, accorded by special legislation, such as the North American Free Trade Agreement Implementation Act, falls within this category as well.
Nationality. Some treaties allow their nationals to seek only E-1 or E-2 status, while other others allow E-1 or E-2 status but with specific restrictions. To qualify for either E-1 or E-2 status, the applicant must be a national of the treaty country. Sometimes, establishing nationality is rather simple, while in other cases, the rules might be quite complicated.
Intent to Depart from the United States. To obtain an E visa, the applicant must demonstrate intent to depart from the United States upon the termination of his status. The applicant, however, does not need to retain a residence in his home country. The applicant’s expression of unequivocal intent to return to his home country upon expiration of the E visa status is sufficient, in the absence of specific evidence to the contrary. An experienced attorney will prepare for an alien a written statement in support of the E visa application describing why the applicant qualifies for an E visa. DOS’ position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that he will not pursue an adjustment of status while in the United States. USCIS’ position is that an application for admission, change of status or extension of stay in E status may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status after that date. Since USCIS recognizes limited dual intent for E visa with proper presentation, the petitioner may be the beneficiary of a labor certification, immigrant petition or have an adjustment of status application pending, and still remain eligible for E status.
A prior overstay or violation of status while in the United States suggests that the applicant does not intend to depart from the United States upon termination of the status. This presumption, however, may be overcome if the violation was brief and inadvertent.
Both E-1 and E-2 treaty traders and investors may hire aliens to work for them in the United States. These aliens must come to the United States to engage in executive or supervisory duties, or, if employed in a lesser capacity, must have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. Employees of treaty traders or treaty investors seeking E status must also have the same nationalities as their employers’.
In order to support an E-1 or E-2 application filed on behalf of an alien employee of a treaty trader or investor, the employer must be:
A person having the nationality of the treaty country, who maintains the status of treaty trader or treaty investor in the United States, or who is classifiable as such if not in the United States; or
An organization at least fifty percent owned by persons having the nationality of the treaty country who maintain nonimmigrant treaty trader or treaty investor status if residing in the United States, or, if not in the United States, would be classifiable as treaty traders or treaty investors.
This means that, if an employer is residing in the United States with other than E-1 or E-2 status, it is not possible to seek treaty trader or investor status on behalf of their employees. The same rule applies in the case of a corporate employer, when more than fifty percent of the individuals who own the company reside in the United States in a status other than E-1 or E-2.
Executive or Supervisory Character
Executive or supervisory duties grant the alien employee significant control and responsibility for the enterprise’s day-to-day operations and policy decisions. A supervisory position provides the employee with responsibilities for a significant portion of an enterprise’s operation and generally involves the ability to direct lower-level employees. To qualify as such an employee, the executive or supervisory element of the position must be a primary function of the position. For example, if the position principally requires management skills or entails key supervisory responsibility for a large portion of a company’s operation and only incidentally involves routine staff work, an E classification is generally appropriate. Conversely, if the position chiefly involves routine work and secondarily entails supervision of low-level employees, the position could not be classified as executive or supervisory.
In determining whether the proposed position is executive or supervisory, consular officers will consider the title of the position, its place in the company’s organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the company’s overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, remuneration and whether the applicant possesses the required executive or supervisory experience.
E classification is suitable for specialists. The applicant bears the burden of establishing at the time of application not only the need for the special qualifications that he offers but the length of time that such skills will be needed. To determine whether an alien qualifies for an E visa, USCIS will assess the degree of the applicant’s expertise, uniqueness of skills in his area of expertise, length of experience, training and the remuneration that the applicant’s special qualifications can command. USCIS evaluates special qualifications in light of all circumstances at the time of the application on a case-by-case basis.
The availability of American workers is another factor in assessing the degree of specialization possessed by the alien and importance of his skills to the successful operation of the business. This is not a labor certification test but a measure of the degree of specialization based on the skills in question and the need for such skills. For example, a telecommunication engineer coming to train Americans on a new technology would qualify for an E visa. If the applicant cannot demonstrate his essential skills during the interview, then the consular officer might ask the company to provide statements from such sources as chambers of commerce, labor organizations, industry trade sources or state employment services as to the unavailability of American workers in the skill areas concerned. It should be noted that there is no requirement that an essential employee have previous employment with the treaty enterprise. There are two distinct types of essential-skill workers:
Workers whose skills the employer may need for only a relatively short period of time when the purpose of the employee’s admission relates to start-up operations (of either the business or a new activity by the business) or
Workers whose role is to train and supervise technicians employed in manufacturing, maintenance, and repair functions.
Ordinarily skilled workers can qualify as essential employees, but this scenario almost always involves workers needed for start-up or training purposes. A new or established business expanding into a developing field in the United States might need employees who are ordinarily skilled workers for a short period of time. Such employees derive their essentiality from their familiarity with the firm’s overseas operations rather than the nature of their skills. Employers in such cases are expected to train American workers to replace these employees, usually within one or two years.
The training of American workers is not required if the applicant demonstrates that he has special qualifications, and, on a long-term basis, these qualifications are essential for the efficient operation of the treaty enterprise. Such activities as product improvement, quality control or providing a service not generally available in the United States would qualify as a long-term need. In this case, an alien may remain in the United States, in either E-1 or E-2 status, for an indefinite period of time. This may be illustrated by the following example. General Motors invites to the United States automotive design engineers from the United Kingdom pursuant to a contract between the treaty investor and General Motors. The treaty investor establishes that it will take ten years to train an American worker to become an automotive design engineer. In this case, British workers are long-term, essential workers, and General Motors is not required to replace them with Americans.
NAFTA Treaty Traders
According to the terms of theNorth American Free Trade Agreement (NAFTA), citizens of Canada or Mexico are not entitled to E classification if the Attorney General and the Secretary of Labor certify that, at the time of the E visa application:
There is a strike or lockout in progress in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
The alien has failed to establish that his employment during the labor dispute would not affect adversely the settlement of the strike or lockout or the employment of any person who is involved.
INCIDENTAL ACTIVITIES WHILE IN E-1 AND E-2 STATUS
Pursuant to 9 FAM §41.1, Note 3.1, treaty traders and investors are entitled to engage in incidental activities as long as their primary purpose for coming to the United States is to develop and direct the treaty business. These incidental activities are limited to those in which a mere visitor could participate (tourism and pursuit of education under certain circumstances). The treaty traders, investors and their employees, however, may only pursue employment that is consistent with the terms and conditions of their E visa status.
On the other hand, treaty traders and investors may work for the subsidiary of the treaty enterprise. According to 8 CFR §214.2(e)(8)(ii), such employment does not constitute a substantive change in the terms and conditions of the underlying E-treaty employment if, at the time the E treaty status was determined, the applicant presented the following evidence:
The enterprise or organization, and any subsidiaries thereof, where the work will be performed; the requisite parent-subsidiary relationship; and that the subsidiary independently qualifies as a treaty organization or enterprise under this paragraph;
In the case of an employee of a treaty trader or treaty investor, the work to be performed requires executive, supervisory or essential skills; and
The work is consistent with the terms and conditions of the activity forming the basis of the classification.
E-1 and E-2 Dependants
The spouse and dependent children (unmarried and under age 21) of an E-1 or E-2 applicant are eligible to obtain the same classification as the principal alien. The nationality of a spouse and child is not material to their eligibility.
Such treaty dependents are permitted to engage in incidental activities but are not eligible to pursue employment without authorization. According to 8 CFR §214.1(e), an alien may not engage in any employment unless he has been accorded a nonimmigrant classification that authorizes employment. Any unauthorized employment by a nonimmigrant constitutes failure to maintain status, which may give rise to removal proceedings or denial of future immigrant benefits. Dependent spouses of E-1 and E-2 may apply for open-market employment after their entry into the United States. Open-market employment authorization allows dependent spouses to work for any employer upon receipt of the authorizing document.
VISA VALIDITY AND PERIOD OF STAY
The term of an E visa depends on the reciprocity schedule of the alien’s home country. The FAM provides the maximum visa validity period for each country. The period of validity of a nonimmigrant visa is the period during which the alien may use it to file an application for admission. This has no relationship to the period of time that immigration authorities may authorize the alien to remain in the United States.
According to 8 CRR 214.2 (e) (19), an E-1 or E-2 nonimmigrant and their dependents may be admitted for an initial period of not more than two years. This is the period that will be shown on the alien’s Form I-94. As long as the alien possesses a valid E visa, he may depart the United States before the expiration of this two-year period and then reenter using the same visa. At the time of the readmission, however, the alien may request a new Form I-94 from the port of entry for two more years.
Since visa validity has no relationship to the period of admission, the alien may seek a two-year period of admission even if his visa is due to expire within a shorter period of time. Assuming the alien enters the United States one day before the visa expiration, the immigration officer will issue a Form I-94 for a period of two years. If, however, the alien leaves the United States and I-94 expires while the applicant is outside of the United States, then he must seek a new E visa.
An alien who is in the United States based on another visa status may seek that of E-1 or E-2 from USCIS by applying for a change of status at the service center having jurisdiction over his business and him. Those treaty traders and investors who are abroad must apply through the appropriate consulate. They are not required to file a separate petition because the Department of State, not USCIS, has primary jurisdiction over E adjudications. Since application and adjudication procedures differ from consulate to consulate, applicants must consult the United States consulate in their home countries to comply with these requirements.