E Visa Attorney
Nationals of the following Countries May Apply for the E Visa:
- Bosnia and Herzegovina
- China (Taiwan)
- Congo (Brazzaville)
- Congo (Kinshasa)
- Costa Rica
- Czech Republic
- Korea (South)
- Slovak Republic
- Sri Lanka
- Trinidad & Tobago
- United Kingdom
The E Visa Requirements
The E applicant must meet the following requirements:
- Must be entering the United States
- Based upon a treaty of friendship, commerce and navigation, or other arrangements
- The person must be entering the United States for the following reasons:
- Solely to carry on substantial international trade (E-1 treaty trader)
- Solely to develop and direct the operations of a treaty enterprise in which the investor has or is in the process of investing (E-2 treaty investor)
- As a key employee from a treaty country of either E-1 or E-2
- As a principal executive and employer of an enterprise with at least 50% of shares owned by treaty nationals
- A dependent of one the abovementioned individuals
The E visa holder must show that he is coming to the United States for a specific period. There has to be an intent to depart, and nothing more. The visa holder can not be denied solely for the approval of an immigrant visa petition. As mentioned above, some of the treaties have certain requirements not included in other treaties. An applicant must submit a business plan. E visa holders may adjust status by including form I-508 with their adjustment of status application to waive any treaty protections.
Nationality of the E Treaty Enterprise
A person entering the United States as an E treaty investor or trader be a national of the treaty enterprise. In employee cases, the employee and the treaty enterprise must be from the same treaty country. The country of incorporation is irrelevant to the application. All that matters is the nationality of the trader or investor. Lawful permanent residents may not be counted towards nationality. The nationality used to enter the United States is the one that is used at the time of the application. For example, a dual national of Venezuela and Italy may not apply for an E visa if he entered using his Venezuelan passport.
E-1 Visas for International Traders
E-1 visas are available to nationals of the treaty country if they meet the following criteria:
- He must show that the treat exists
- He possesses the nationality of the treaty country
- The activates constitute trade under the Immigration & Nationality Act
- The trade is substantial and is between the US and the treaty country
- The applicant must leave the United States after the E-1 status terminates
Trade is defined as the international exchange of goods between the United States and the treaty country of which the trader is a national. Goods could be tangible and non-tangible goods and services. The trade must also be ongoing and in existence and the applicant must show that it was at the time of the application.
The trade must also be principally between the United States and the treaty country. Employees of the trading company can be new hires and do not have to have worked with the company but must be treaty nationals.
E-2 Treaty Investors Requirements
The E-2 visa classification is available to nationals of the treaty country who meet the following requirements:
- Must show that the treaty exists
- Individual or the enterprise possesses the nationality
- The applicant has invested or in the process of investing in the treaty enterprise
- The treaty enterprise is real and operating
- Investment is substantial
- The applicant will develop and control the enterprise
- The employee must be an essential employee
- The applicant intends to depart the United States after the classification is over
The nationality of the treaty enterprise is determined by the percentage of stock the treaty national controls. Ownership of 50% of the enterprise will be enough if the investor controls the enterprise. The investment funds must be at risk. They could be obtained through a loan but must not be secured by the assets of the enterprise. The funds must also be irrevocably committed to the enterprise.
The investor must also show that the funds were obtained through legal means. It can be from loans, as mentioned above, gifts, inheritance, or any other legitimate sources. Rents paid for the treaty enterprise can be counted towards the investment. The investment could also include intellectual property using the fair market value. Passive investments could not be counted.
The investment must also be substantial, meaning that the amount invested must be sufficient to run the enterprise. The government uses the proportionality test. In other words, investing 100% in a small company valued at under $100,000 is substantial. Alternatively, investing a smaller amount in a $10M enterprise may also be substantial.
The enterprise may not be marginal. Marginal enterprises are ones that do not have the present or future capacity to generate enough income fora minimal living for the investor and his family. The investor must show that his enterprise will expand job opportunities, generate other sources of income, the enterprise will generate substantially more income than what is considered a living, and the investor will not simply work as a skilled or unskilled worker.
He must also direct and develop the enterprise. The investor may not compete directly as a skilled worker in the market. He must have a controlling interest in the treaty enterprise. This requirement does not apply to employees.
Employees of E-1 and E-2 Enterprises
The E enterprise may hire employees and grant them the E classification. The enterprise may petition for both Executives, supervisors, and essential employees.
An executive is principally an executive and opposed to someone whose job incidentally or collaterally executive. The executive must have great authority to determine policy, terminate employees, supervises a major part of the company, has executive skills and experience, or must have a major role in the company.
Nonsupervisory employees must be essential to the operation of the enterprise.
Families of E Visa Holders
Family members of the E visa holder may be classified as E visa holders. Their nationality is irrelevant. Spouses of E-2 visa holders may obtain an employment authorization card. The employment authorization may be granted for two years. Additionally, children may not be employed but may attend school without changing status.
Procedures for Obtaining an E Visa
An applicant who is in the United States may submit a change of status by filing an application using form I-129. Applicant may also apply at the embassy or consulate in their country using for DS-160.
Call your E visa attorney, Ahmad Yakzan, today to discuss your options.