With increasing controversy surrounding H1-B visas in the U.S. and its impact on foreign workers and opportunities for foreign entrepreneurs, many other visa options have been overlooked, which could provide foreign entrepreneurs with opportunities to establish or expand their business operations to the U.S. One such group of visa options are the E-visas.

Foreign entrepreneurs who are: 1) currently engaged in trade with the U.S.; 2) have invested a substantial amount of capital in a U.S. enterprise; or 3) Are actively in the process of investing a substantial amount of capital in a U.S. enterprise may qualify for E-visas, specifically, the 1) Treaty Trader Visa (E-1); or 2) Treaty Investor Visa (E-2).

What are E-visas?

Generally speaking, E-visas are nonimmigrant visas that allow nationals of a treaty country to be admitted to the U.S. A treaty country is one in which the U.S. maintains a treaty of commerce and navigation.

How can a foreign entrepreneur apply for either the E-1 or E-2 visa?

If the foreign national is currently and lawfully in the U.S. under a nonimmigrant visa classification,  they can apply for a change of status by filing an I-129. If the foreign national is physically outside the U.S., then they have to apply directly through U.S. embassies abroad.

What is the E-1 visa?

The E-1 visa is the “Treaty Traders” visa. If a foreign national is admitted to the U.S. under the E-1 visa classification, they are admitted to “solely engage in international trade on his or her own behalf.” Trade is defined as “the existing international exchange of items of trade for consideration between the United States and the treaty country…including but not limited to these items: goods, services, international banking, insurance, and transportation.” Substantial trade is defined as, “continuous flow of sizable international trade items, involving numerous transactions over time.” Regarding substantial trade, there is no minimum requirement as to the monetary value or volume of each transaction, but “greater weight is given to more numerous exchanges of greater value.” Principal trade is determined when trade between the U.S. and the treaty country is over 50% of the total volume of international trade.

How to qualify for the E-1 visa?

To qualify for the E-1 visa, the “treaty trader” must:

1. Be a national of a country with which the U.S. maintains a treaty of commerce and navigation.
2. Carry on substantial trade
3. Carry on Principal Trade between the U.S. and the treaty country that qualified the foreign national for the E-1 classification.

What is the E-2 visa?

The E-2 visa is the “Treaty Investor” visa. If a foreign national is admitted to the U.S. under the E-2 visa classification, they are “admitted to the United States when investing a substantial amount of capital in a U.S. business.” Investment is defined as, “the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with he objective of generating a profit.” A substantial amount of capital is defined as: “1) Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; 2) Sufficient to ensure the treaty investor’s financial commitment to the successfully operation of the enterprise; and 3) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.”

How to qualify for the E-2 visa?

To qualify for the E-2 visa, the “treaty investor” must:

1. Be a national of a country with which the United States maintains a treaty of commerce and navigation.
2. Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
3. Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

Who else is eligible for an E-1 or E-2 visa classification?

Family Members

Dependent family members of the “treaty trader” or the “treaty investor” such as spouses and unmarried children under the age of 21 may be granted the nonimmigrant classification. Additionally, spouses may apply for work authorization without specific restrictions to where they may work.

Treaty trader/Treaty investor employees

Certain employees of the organization may also be eligible for the E-1 or E-2 nonimmigrant classification if they meet the following requirements:

1. They are the same nationality of the Treaty-trader
2. Meet the definition of employee under the relevant law
3. Either engage in duties of an executive or supervisory character, or if not, have special qualifications.

Period of Stay under the E-1 and E-2 nonimmigrant visa classifications

Foreign nationals who qualify for either the E-1 or E-2 nonimmigrant visa classification will be allowed a maximum initial stay of 2 years, where requests for extension can be granted for up to 2 year increments at a time. There is no maximum limit to the number of requests for extensions, meaning that both  the E-1 and the E-2 can be renewed indefinitely.

For more information, you can visit the following sites:

E-1 visas via USCIS: https://www.uscis.gov/working-united-states/temporary-workers/e-1-treaty-traders

E-2 visas vis USCIS: https://www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors

U.S. Department of State: https://travel.state.gov/content/visas/en/employment/treaty.html

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The views expressed in this article do not constitute legal advice and legal information provided in this post should not be relied upon as legal advice. Please contact an Attorney for advice on your specific matter.

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