"E" Nonimmigrant Visa Details (including E-1/E-2)

8"E" Nonimmigrant Visa Overview

4Treaty Countries
4Key Considerations

4Three Basic Types of E-1/E-2 Visa Use
4Qualifying Business/Enterprise
4New/Existing Business/Enterprise
4Validity & Application Process:  E Visa "Sticker" & "Status"
4US Consulate/Embassy (DOS) Filing VS. US CIS (DHS) Filing

8E-1 Nonimmigrant Visa (TRADE)

4E-1 Trade
4E-1 Visa Requirements

8E-2 Nonimmigrant Visa (INVESTMENT)

4E-2 Investment
4E-2 Visa Requirements

8Documentation

4General
4Business/Enterprise

The E visa is based on a treaty between the applicant's (individual and/or company) home country (nationality) and the United States, to engage in trade or investment (providing goods and/or services).
In general, the E-1 is for "treaty-traders" and the E-2 for "treaty-investors."
Normally, the applicant will obtain the E visa to trade or invest in the United States, but employees of businesses in the United States that qualify under the E requirements can also obtain E status to work.
(This is a nonimmigrant visa, and it is not the "immigrant investor visa" that requests for permanent residency "green card" status.  The E visa can be approved for up to five years initially, with indefinite extensions.)
 

TREATY COUNTRIES
 

E-1 Treaty Trade	E-2 Treaty Investment
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Canada, Chile (Jan. 2004), China (Taiwan), Colombia, Costa Rica, Croatia	Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile (Jan. 2004) China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic
Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg	Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg
Macedonia, Mexico, the Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines	Macedonia, Mexico, Moldova, Mongolia, Morocco, the Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland
Singapore (Jan. 2004), Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, the United Kingdom and Yugoslavia.	Romania, Senegal, Singapore (Jan. 2004), Slovak Republic, Slovenia, Spain, Sri Lanka, South Korea, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, the United Kingdom and Yugoslavia.

Note:  This list is subject to change; please check the Department of State website for the current list.

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KEY CONSIDERATIONS

Three Basic Types of E-1/E-2 Visa Use
E-1 TREATY-TRADER, APPLICANT
E-2 TREATY-INVESTOR, APPLICANT
E-2 EMPLOYEE, EMPLOYEE OF QUALIFYING E BUSINESS

Qualifying Business/Enterprise
The nature of the business can vary, but it must be a for-profit, commercial and active enterprise.  The business either engages in "trade," or if based on an investment, provides goods or services.  The business should not exist solely to employ the E visa principal trader/investor/employee, but provide employment opportunities to domestic U.S. workers (U.S. citizens, "green card" holders).

New/Existing Business/Enterprise
There is no requirement that the E Business/Enterprise be new.  Purchasing or investing in an existing business, and meeting the E requirements for either the E-1 or E-2 is possible.  All requirements of either the E-1 or E-2 must be met, but some requirements may be easier to establish by purchasing or investing in an existing business.
For example, for E-1 visas that requires a showing of "substantial trade" between the U.S. and the foreign country of the applicant's nationality, an applicant can acquire a company that already has an established practice of such trade.
For E-2 visas that requires a showing of investing a "substantial amount," an applicant can make an investment in a commercially active and "bona fide" enterprise by considering the "cost of the business."
Existing U.S. domestic employees of the business to be purchased/invested, may also be positive factors in the application.

Validity:  E Visa "Sticker" & "Status"
It is possible to obtain an E-1/E-2 visa "sticker" that is valid for 5 years.  However, the duration of the visa status in the United States, is only 2 years.  This means that once in 2 years, the E visa holder in the U.S. must depart the United States and re-enter, or obtain an extension while in the United States.  (For example, if an E status holder re-enters the United States just before the 5-year E visa "sticker" is about to expire, he/she will be admitted for 2 years.)  Extensions of the visa "sticker" are possible, indefinitely, and therefore, some feel that this visa is similar to having permanent residency status "green card" status.  However, unlike the H or L visas where such visa holders can safely apply for permanent residency, the E visa does not have "dual intent."  This means that E visa holders can only have nonimmigrant intent, and not both.  (For example, filing a labor certification for permanent residency, and thereafter requesting the E visa "sticker" at a U.S. Consulate/Embassy (Dept. of State), may result in a refusal of the E visa "sticker" issuance.)
Note:  For E-2 employees entering the U.S. to work in an essential/specialist capacity for a new E business, obtaining an extension after the initial 2-year visa "status" validity may be difficult in certain situations.

US Consulate/Embassy (DOS) Filing VS. US CIS (DHS) Filing
The US Consulate/Embassy (Dept. of State) can directly process the E visa application overseas.  In this case, the E visa approval means that the E visa "sticker" will be issued at the same time.  The visa may be approved up to 5 years.
The US CIS (DHS) can accept a change of status application for those in the United States, filed with the appropriate US CIS Service Center.  In this case, approval is good for 2 years, and like other visas, if the approved applicant departs the United States, he/she must obtain the E visa "sticker" at the US Consulate/Embassy before re-entering the United States.
Note:  Unlike other visas, the approved applicant (from the US CIS) must once again provide all documentation to the US Consulate/Embassy, and approval is not automatic.  In fact, it is more akin to applying for the E visa for the first time.
Note:  It is sometimes considered that applying at the US Consulate/Embassy directly is difficult.  Therefore, some applicants first file with the US CIS (if he/she is in the U.S. and can file a change of status), commence or continue the E-1 "trade" or E-2 "investment," and further strengthen their meeting of the E visa requirements.  Thereafter, he/she will depart the United States, and apply for the E visa "sticker" (overseas at the US Consulate/Embassy) with more documentation.

E-1 TRADE

The trade must be "substantial trade which in international in scope principally between the U.S. and the foreign state of which s/he is a national."  Trade can include the following:  goods, services, international banking, transportation, communications, accounting, design, consulting, tourism, technology transfer, etc.
Substantial means at least 50% of the trade is between the United States and the foreign country of the nationality of the business.  The amount of trade is not necessarily determined on the number of trading activity, but may be the "volume" and "amount" of trade.  It must also be an active and continuing trade.  (For example, a one-time substantial trade may be considered insufficient.)
 

E-1 VISA REQUIREMENTS

1. A trade treaty must exist between the United States and applicant's country,
2. At least 50% of the company is owned by nationals of applicant's country,
3. The owners of the company must either:

(i) maintain E nonimmigrant status if they are in the United States, or
(ii) must live outside the U.S. and be eligible for E nonimmigrant status if they were to live in the United States.  (This means that owners who are also U.S. citizen or permanent resident cannot be counted toward determining at least 50% ownership, even if they are nationals of the applicant's country.)

4. Applicant is either:

(i) an owner of the company or
(ii) an employee in a managerial or executive capacity or with essential skills,

5. The company has already been engaged in substantial trade principally between the United States and applicant's country (or is ready to engage in substantial trade). The trade must be substantial in terms of dollar amount, volume and frequency, and

6. The applicant has "nonimmigrant intent."

E-2 INVESTMENT

An "active" investment is required into a "bona fide" enterprise, and a mere transfer of funds into a bank account is insufficient (however, the investment capital can be protected while the application is pending).  Notwithstanding any such protection, it must be committed and subject to loss, and the source of the funds must be made known.  The amount must be substantial and sufficient, in relation to the nature of the enterprise, to develop, continue, or expand a business that is not "marginal."  "Substantial" investment varies, from $100,000.00 to $300,000.00.  Service enterprises are considered to require less investment, but the investment amount and active enterprise must not merely support the visa applicant and his/her family members in the United States.
 

E-2 VISA REQUIREMENTS

1. An Investment treaty must exist between the U.S. and applicant's country,
2. At least 50% of the company is owned by nationals of applicant's country,
3. The owners must either:

(i) maintain E nonimmigrant status if they are in the U.S., or
(ii) must live outside the U.S. and be eligible for E nonimmigrant status if they were to live in the United States. (This means that owners who are also U.S. citizen or permanent resident cannot be counted toward determining at least 50% ownership, even if they are nationals of the applicant's country),

4. Applicant is either:

(i) an owner of the company, or
(ii) an employee in a managerial or executive capacity or with essential skills,

5. The owner either has already made a substantial investment or is actively in the process of making a substantial investment in the U.S. enterprise. The investment must be substantial in terms of dollar amount, capitalization and job creation, but what is considered substantial depends on the type of business, and

6. The applicant has "nonimmigrant intent."

 
GENERAL

Essential documents must first include "nationality" documents relating to the individual applicant as well as the business enterprise located in the United States where the E visa holder will work (i.e., applicant is Japanese, and 60% of the business enterprise is owned by Japanese), as well as relating to "substantial trade" or "substantial investment."

The crucial factors are to demonstrate that the business enterprise in the U.S. is or will be active and "bona fide."  Documents relating to the bona fide nature of the business enterprise may include a licenses/certificates to do business, a detailed business plan, commercial leases, contracts, invoices, client/customer list, marketing analysis, appraisal information about the business entity, etc.

A new business enterprise may require substantial documentation that indicates that the for-profit enterprise will commence immediately and that necessary preliminary steps, normal for the type of business, have already been undertaken.
An existing business may require showing of its past and current business activity, including tax documents and payroll information.

Regardless of new or existing business, a business plan that provides details of the active and bona fide business, for 3 to 5 years.
Additionally:

Corporate documents, such as licenses, incorporation documents, certificates, insurance, memberships, etc.
Financial documents, such as financial statements, bank accounts, investment capital source and amount, corporate tax returns, etc.
Marketing documents, including advertisements, brochures, etc.
Commercial lease for offices, warehouses, etc.
Inventory, equipment, machinery, etc.
Hierarchy chart, employee list, payroll documents, insurance, etc.
If affiliated with other companies (overseas companies), documentation relating to association/affiliation, etc.
Documents relating to applicant's nationality as well as qualifications to fulfill the post, that may include employment verification letters, diplomas, certificates, etc., as well as detailed information of the duties and responsibilities, depending on the type of E visa requested.

BUSINESS/ENTERPRISE

1.  Articles of Incorporation
2.  Ownership documents (i.e., stock certificate(s))
3.  Business license, permits, or similar documentation
4.  Lease
5.  Proof of the existence and viability of the business, including, financial statement (income, taxes, employees, etc.).
If "new company" (start-up):  U.S. investment and financial ability to remunerate the employee(s) and to commence doing business in the United States.
6.  Business activity documents (customer/client list, bank accounts, etc.)
7.  The organizational structure of the business/enterprise.

Additional:
* = "new business/enterprise"
1.  Certificate of Incorporation, or equivalent documentation*
2.  Business license, office insurance, permits, registration, or equivalent documentation*
3.  Trademarks, logos, etc.
4.  Office/lease to premises or title deed to fixed property*
5.  Business Operations hierarchy chart*
6.  Public relations materials (advertisements, stationary, business cards, etc.)
7.  Brochures
8.  Photographs of sample products, or information about services
9.  Invoices to customers and from suppliers and/or contracts showing ongoing business activity
10.  Ownership documents (stocks, certificates, etc.)*
11.  Ownership hierarchy chart*
12.  Financial statements
13.  Bank account/bank statements*
14.  Tax documents
15.  Employee payroll documents (health insurance, etc.)
16.  Employee hierarchy chart

*17.  Business Plan (3yr - 5 year):  include information about marketing, profitability, future employees, etc.
*18. U.S. investment documents (U.S. bank account showing ability to pay employee(s) and to commence doing business in the United States).
*19. Initial BUSINESS OPERATIONS documents (initial purchases of equipment, furniture, stationary, etc.).
*20. Initial MARKETING documents (initial contacting vendors, customers, clients, advertising, etc.).
*21. Initial EMPLOYEE/EMPLOYMENT documents (initial resumes of potential employees, job offer advertisements, etc.).

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