The E-1 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the alien's country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the U.S. and a treaty country. Title to the trade item must pass from one treaty party to the other.
If the alien is inside the U.S., the I-129 is used to apply for a change of status, extension of stay, or change of employment. This classification does not require a petition for employment if the alien is outside of the U.S. If outside of the U.S., the alien applies for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad.
Application Document Requirements
The application must be filed with the appropriate fee payment, and evidence that: - The applicant is a national of a country with which the U.S. has the requisite treaty or agreement;
- The activity constitutes trade as defined at 8 CFR 214.2(e)(9);
- The trade is of a substantial nature (i.e. an amount of trade sufficient to ensure a continuous flow of international trade items between the U.S. and the treaty country);
- The trade conducted by the alien is principally trade between the United States and the treaty country of which the alien is a national. Trade is deemed to be principally between the U.S. and treaty country when over 50% of the volume of international trade conducted by the treaty trader is between the U.S. and treaty country of the treaty trader's nationality;
- If the applicant is not the principal trader, he or she must be employed in an executive or supervisory capacity, or possess special qualifications that make the applicant's services essential to the successful and efficient operation of the enterprise.
The employee has the same nationality as the principal alien employer.
The alien principal employer is an enterprise or organization at least 50% owned by persons having the nationality of the treaty country.
E-2 Nonimmigrant Investor Visa
Individuals entering the U.S. to direct and develop a U.S. company in which they have invested or are in the process of investing a substantial amount of capital can qualify for an E-2 visa. The individual must be a national of a country that has a treaty in existence with the U.S. (access the Department of State website for an updated list of countries with E treaties with the U.S.: http://travel.state.gov/reciprocity/list_of_treaty_countries.htm) and at least 50% of the ownership of the company must be by treaty country nationals. E-2 Visas are also available to employees of a company as long as they are managers, executives or specialized workers.
Agricultural (Agronomist), Animal Breeder, Animal Scientist, Apiculturist, Astronomer, Biochemist, Chemist, Dairy Scientist, Entomologist, Epidemiologist, Geneticist, Geochemist, Geophysicist (including Oceanographer in Mexico and the United States), Horticulturist, Meteorologist, Pharmacologist, Physicist (including Oceanographer in Canada), Plant Breeder, Poultry Scientist, Soil Scientist, Zoologist.
- The Investment Must be Active. In order for an investment to qualify for the basis of an E-2 visa, the investment must be active, or must be used to produce a commodity or service. This means that an investment in land, for example, would not qualify since it would be considered a passive investment. It is acceptable to use an escrow account to protect the investor in the event the visa is denied, however, the investor must present other evidence showing the investment will be active. In addition, the investor cannot just invest the capital and not take part in the actual managing or directing of the U.S. company. The investor must manage the business and must exercise controlling interest in the business.
The Investment Must be Substantial. The investment must be substantial. Although neither BCIS nor the DOL cite specific amounts as substantial, they both use one of two tests to determine if the investment is substantial. BCIS and DOL regulations both require that the amount invested either be proportional to the total value of the business or that the amount invested be enough to establish a viable business in the particular field. Sometimes BCIS and the DOL use the following scale to determine whether an investment is substantial:
- If the value of the business or the cost to start is less than $500,000, a minimum 75% investment is required
- If the value of the business of the cost to start is between $500,000 and $3M, a minimum of 50% investment is required
- If the value of the business or the cost to start it over $3M, a minimum 30% investment is required
- The Investment Cannot be Marginal. In other words, the investment must generate more than just enough income for the owner to make a living and must eventually be able to generate jobs in the U.S.
- The E-2 Visa Holder Must Have Nonimmigrant Intent. E-2s must have the intent to return to their home country after their authorized period of stay ends. However, unlike with many other nonimmigrant visa categories, this requirement can be met with only a statement to the consular officer stating their intent to return. It is not necessary to present evidence of continuing ties to the home country.
Unlike with most other nonimmigrant visa categories, E-2 visa applicants do not need to first submit a petition with BCIS. To apply for an E-2 visa, an application must be submitted to the home country consulate. It is possible to apply for an E-2 visa through BCIS only if the investor is in the U.S. and is eligible to change status to E-2. However, a first time E-2 visa applicant will have to make an entirely new E-2 application to a U.S. consulate for an E-2 visa upon their first trip abroad, despite the fact that BCIS already approved their E-2 status in the U.S. Therefore, to avoid having to submit two E-2 visa applications, it is often preferable to apply for an E-2 visa the first time at the U.S. consulate.
E-2 visas are issued for up to five (5) years but can be renewed indefinitely as long as the qualifying investment continues. Whether a visa is issued for the maximum amount of time depends on the applicable treaty and is also at the discretion of the embassy.
Spouses and children of E-2s are eligible for E-2 dependent visas. Spouses of E-2 principals may apply for employment authorization once they are admitted to the U.S. in E-2 status. Finally, there are no restrictions on family members pursuing studies while in E-2 status.