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E-1 and E-2 Visas

by Gregory Siskind, Esq.

The Immigration and Nationality Act provides treaty trader/investor nonimmigrant status for a national of any of the countries with which an appropriate treaty of commerce and navigation exists.

An individual who wishes to go to the US to carry on substantial trade, principally between the US and his/her own country, may apply for a treaty trader visa (E1). Someone who is going to the United States to develop and direct the operations of an enterprise in which he/she has invested, or is actively in the process of investing, a substantial amount of capital is welcome to apply for a treaty investor visa (E2). The category is popular because unlike the L-1 category, it is not necessary to maintain a business outside the US and also because unlike L-1 status, E-1 and E-2 visas can be renewed every five years without limits.

· E-1 Treaty Traders must submit a comprehensive letter from the principal alien’s company or employer identifying the applicant and describing in detail the nature and function of the business and the applicant’s position. The letter must be on the current business/employer’s letterhead, with an original signature from an authorized company representative, and must be addressed to the Visa Office, Department of State. The letter should demonstrate the applicant’s entitlement to E-1 status based on the continued trade between the US and the country of the applicant’s nationality. The letter must contain a statement of unequivocal intent that the applicant will depart the US when E-1 status ends. If the visa applicant is the sole company employee in the US , submit the latest copy of the company’s FICA and IRS forms with the applicant’s letter of explanation. Please include the company’s fax number.

· E-2 Treaty Investors must submit a copy of the company’s most recent financial statement. E-2 Treaty Investors must also submit a comprehensive letter from the principal alien’s company or employer identifying the applicant and describing in detail the nature and function of the investment and the extent of the principal alien’s participation in the investment. The letter must be on the current company/employer’s letterhead, with an original signature from an authorized company representative, and must be addressed to the Visa Office, Department of State. The letter should contain a statement of unequivocal intent that the applicant will depart the US when E-2 status ends.

· One Supplemental Nonimmigrant Visa Application, Form DS-157, for all male applicants between the ages of 16 and 45, regardless of nationality, in addition to the DS-156. The DS-157 must be typed or printed. All questions on the DS-157 must be answered. Applicants whose native language is not written in the English alphabet should print their names in their native language in item 3 of the DS-157. An online version of this form is available at http://travel.state.gov/DS-0157.pdf.

· A passport valid for at least six months beyond the visa application date (including Visa Office processing time). If more than one person is included in the passport, each person applying for a visa must submit a visa application. You must present the passport bearing your most recent E visa. Each applicant receives an individual visa, and each Machine Readable Visa (MRV) covers a full passport page. Therefore, passports must contain a blank, unmarked visa page for each US visa to be placed in the passport. Remove extraneous pieces of paper (slips of paper with phone numbers, old airline boarding passes, etc.) from the passport. You may submit a passport in a protective cover.

· The original or a certified copy of Form I-94, Arrival-Departure Record annotated by the Department of Homeland Security (formerly INS) inspector from your most recent admission to the US .

· If the spouse and/or dependent children are applying for visas separately from the principal alien, submit certified copies of the principal alien’s valid visa and valid I-94 (front and back) in addition to the other listed requirements.

Note that both E-1 and E-2 applicants can submit a variety of other documents demonstrating that an investment or trade between the US and treaty country is substantial. Your immigration lawyer should be able to provide you with a document checklist, but expect to have to produce documents that concern

- information on business activities such as marketing documentation, sales contracts, customer lists, etc.

- if the company has business abroad, information on the business and finances of the foreign operation

- information on the proposed position in the US and background information on the proposed executive, owner, manager or essential employee

The following countries have E-1 Treaty Trader Status: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom and Yugoslavia.

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

Yes. A spouse of an E-1 or E-2 visa holder can work with an employment authorization document. Spouses must file an I-765 application with a regional service center along with proof of the spouse’s visa status.

Yes, the USCIS has the authority to approve a change to E-1 or E-2 status from another non-immigrant visa. However, once an applicant leaves the US , the applicant must apply for E Visa status at a consulate. Because the consulate can reject the application, one risks being put in a position where a substantial investment is made in a business in the US and then the applicant is unable to return to the US to run the business. Consequently, applicants are urged to exercise caution when first attempting to apply for E status in the US .

About The Author

Gregory Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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