Lee & Bardavid - Service Area

E VISA

2 categories of E Visas:

E-1 treaty trader visa – available to persons who will enter the U.S. solely to carry on substantial trade principally between the United States and the foreign country of which the person is a national.
E-2 treaty investor visa – available to persons entering the United States solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing a substantial amount of capital.

Purposes of E Visas:

To promote trade and commerce between the United States and the treaty country (E-1 treaty trader visa)
To create jobs for U.S. workers (E-2 treaty investor visa)

Common characteristics of both E-1 and E-2 Visas:

1. 3 elements must be present for E visa to be available:

A treaty must exist between the United States and the foreign country (see list of E-1 treaty trader and E-2 treaty investor countries).

A majority (i.e., over 50%) ownership or control of the investing or trading company must be held by nationals of the foreign country –

The "nationality" of the persons owning the corporate stock is their country of citizenship.

ii.

Foreign nationals who are also U.S. permanent residents cannot be counted toward determining a majority ownership/control of the investing or trading company.

iii. For large, publicly held companies that may have a difficult time establishing their nationality through stock ownership records, the firm can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange.

The place of incorporation or principal place of business is not relevant to determining nationality.

Foreign country citizenship must be held by each employee or principal of the company who seeks e status under the treaty.

2. Non-immigrant visa for temporary stay in the United States

3. Length of time E visa will be issued is determined by agreements between the United States and the treaty country (e.g., E visa issued to Korean nationals is valid for a period of 5 years.)

4. E visa may be renewed continuously without a limit on stay.

5. Employee or principal of the company who seeks e status is restricted to working only for the specific employer or self-owned business which acted as the E visa sponsor.

6. There are 2 ways to obtain E visa:

a. Apply for E visa in the U.S. consulate in the foreign country; and
b. Apply for E visa with the USCIS in the United States, but only if the applicant is in the United States in another visa status and seeks to change to E visa.

7.There are no quota restrictions on the E visa.

8. E visas are also available for accompanying spouse and unmarried children under 21 years of age. Accompanying spouse may also obtain work authorization to work in the United States

E-1 treaty trader visa

There are 3 requirements for E-1 treaty trader visa:

1. More than 50% of the company's trade must be between the United States and the principal's home country (as measured by its cash value).

a.The law is liberal in its definition of what constitutes "trade". (e.g., the rendering of services is considered trade.)

2."substantial trade" –

a.Generally, depends on the type of business.
b.3 factors are considered as to what constitutes "substantial trade".

i.Volume of trade;
ii.Number of transactions; and
iii.Continued course of trade.

3. Duties appropriate for employees applying for E-1 treaty trader visa:

a. An employee performing supervisory or executive duties.
b. An employee serving in a "minor capacity" who has "skills which are essential to the successful operation of the enterprise" — e.g., technical knowledge of the company's product not readily available amongst U.S. workers.

i. However, visas for technical staff will not be indefinitely renewed as the enterprise will be expected to train U.S. workers to replace the personnel.

E-2 treaty investor visa

1.There are 3 requirements for E-2 treaty investor visa:

a.The investment must be active, not passive. There must be an irrevocable commitment of funds into an enterprise representing a real operating enterprise productive of some service or commodity.
b.The investment must be "substantial".

i. The term "substantial" is not defined by a specific dollar amount.
ii. The USCIS sometimes uses the following sliding scale in determining whether an investment is "substantial":

Total value of business or cost to start new business	Minimum % of investment required
< $500,000	75%
$500,000 - $3,000,000	50%
> $3,000,000	30%

c.The investment must create jobs. Investment cannot be marginal (i.e., one which will only support the investor and his/her family). Rather, the investment should create job opportunities for U.S. workers. U.S. workers are currently employed by the enterprise or will be employed within 5 years.

2. Individuals who are eligible for E-2 visa:

a. Principal investor –

i. Individual must be responsible for the development and direction of the investment.
ii. Controlling interest is the test.

- E.g., 2 owners, each 50% ownership. Generally, this is not considered a controlling interest unless each owner is guaranteed veto power.
- Representatives of corporate investors holding less than 50% in the investment are treated differently.

*.If the corporation has operational control of the investment through its minority stock holding, its representatives can qualify as "investors" responsible for the development and direction of the investment.
*.Some individual investors might also qualify based on operational control, as long as the other holdings in the enterprise are sufficiently dispersed that the individual has effective control of the enterprise.

b.Employees of investing enterprise –

i. Employees must be essential for the company's operations.
ii. 2 classes of employees:

- Treaty nationals serving a managerial capacity.
- Treaty nationals who serve in a technical capacity requiring special training and qualifications and who are needed to do one of the following:

* Establish the enterprise (start-up)

. However, once start-up completed, it is expected that U.S. workers will be trained to fill these positions.
. Rule of thumb: 1 year length of stay (although renewals may be available).

* Train or supervise persons serving in technical positions, such as manufacturing, maintenance, or repair technicians.

*Continuously monitor and develop product improvement and quality control.

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