Nonimmigrant visa for treaty traders (E-1) and treaty investors (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation.  Nonimmigrant visa E for treaty traders and treaty investors is one of the most flexible employment-related nonimmigrant categories allowed under the law because it offers 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:

1. 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
2. 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.

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.

Employment of E-1 and E-2 Principal Aliens

Employers seeking nonimmigrant visa E 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 for a nonimmigrant Visa E for treaty traders or treaty investors, petitioner, employer must file an application for the 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.  It involves the ability to direct lower-level employees. To qualify an executive or supervisor, supervisory function must be the primary function of the position.  The position must require daily management and key supervisory responsibilities for large company operations.  Conversely, if the position chiefly involves routine work it is not suited for E treaty trader/investor.  If responsibilities are secondarily and involve supervision of low-level employees, USCIS will not consider it as executive or supervisory.

In determining whether the proposed position is executive or supervisory, consular officers will consider several things.  They are the title of the position, its place in the company’s organizational structure, the duties, the degree to which the applicant will have ultimate control and responsibility for the company’s overall operations.  They will consider the number and skill levels of the employees the applicant will supervise, remuneration and whether the applicant possesses the required executive or supervisory experience.

Essential Skills

E classification is suitable for specialists. The applicant must establish that there is a need for special qualifications and he has these qualifications.  He must show for what length of time such skills are required. To determine whether an alien qualifies for an E visa, USCIS will look at several criteria.  These criteria are expertise, uniqueness of skills, length of experience, training and applicant’s remuneration. 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 the alien possesses.  The USCIS will determine whether these skills are important to the successful operation of the business. This is not a labor certification test .  It is a review of the degree of specialization based on the required skills 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 for additional documentation.  Letters from chambers of commerce, labor organizations, industry trade sources or state employment services may provide that are no available American workers of this skill set. Note, there is no requirement that an essential employee have previous employment with the treaty enterprise. There are two distinct types of essential-skill workers:

1. 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
2. Workers whose role is to train and supervise technicians employed in manufacturing, maintenance, and repair functions.

Ordinarily skilled workers can qualify as essential employees.  This scenario almost always involves workers needed for start-up or training purposes 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.  These qualifications must be essential for the efficient operation of the treaty enterprise.  A long term need examples are product improvement, quality control.  Likewise, offering a service that is not available in the United States qualifies as a long term need. In this case, USCIS may approve E 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.  Both parties have a contract.  The treaty investor must show that it will take ten years to train Americans to become automotive design engineers. In this case, British workers are long-term, essential workers.  That’s why General Motors is not required to replace them with American workers.

NAFTA Treaty Traders

According to the terms of the North 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 employment opportunities of other involved people.

INCIDENTAL ACTIVITIES WHILE IN E-1 AND E-2 STATUS

Pursuant to 9 FAM §41.1, Note 3.1, treaty traders and investors can engage in incidental activities. But their primary purpose to work in the United States is to develop and direct the treaty business. These incidental activities, for example, are tourism and pursuit of education under certain circumstances. The treaty traders, investors and their employees may only work as allowed by the terms of their E visa.

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;
• An employee of a treaty trader or treaty investor must perform 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 Dependents

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.

Treaty dependents can engage in incidental activities but they cannot work without authorization. According to 8 CFR §214.1(e), an alien may not engage in any employment unless he has a nonimmigrant classification that authorizes employment. Any unauthorized employment by a nonimmigrant is failure to maintain status. It will lead to removal proceedings or denial of future immigrant benefits. Dependents of nonimmigrant visa E treaty traders and investors may apply for open-market employment. Open-market employment authorization allows dependents 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 enter the United States.  The period of authorized stay is the period during which an immigrant may remain in the United States.

According to 8 CRR 214.2 (e) (19), an E-1 or E-2 nonimmigrant and his dependents enter the United States for an initial period of two years.  Alien’s Form I-94 will reflect this period of authorized stay.  As long as the alien has a valid E visa, he may depart the United States within his two-year period.  He can then reenter using the same visa.  At the time of his reentry,  the alien can ask for a new Form I-94 for another two years.

Visa validity has no relationship to the period of admission.  An alien may seek a two-year period of admission even if his visa validity is expiring.  The alien may enter the United States one day before his E visa expires.  Nevertheless, the immigration officer will issue Form I-94 for a period of two years. If, however, the alien leaves the United States and his I-94 expires, then he must seek a new E visa.

APPLICATION PROCESS

An alien who is in the United States with on another visa may change his status to E-1/E-2  visa.  An alien can apply for this 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. Each consulate has different E visa procedures.  E visa applicants must consult the United States consulate in their home countries to comply with these requirements.