Options for Investors (E-Visa)
Disclaimer: The following information is provided merely as a resource. The mere act of providing this information does not create a lawyer-client relationship, unless, a separate contract for services has been expressly entered into. The following is information that is general in nature; therefore, do not rely on this information for your unique situation.
General Overview The E visa category allows foreign nationals who are citizens of treaty countries to engage in activities as a treaty trader or treaty investor, or as an employee of a qualifying entity that in turn, must be a treaty trader or treaty investor. Treaty Traders engage in substantial international trade in goods, services or technology between the treaty country whereas Treaty Investors direct and develop a business in which the investor has either already invested or is in the process of investing. E employees must be supervisors, executives or essentials. E status is valid for up to two years and E visas are issued up to 5 years. The visa is renewable for as long as the investor/trader is engaged in appropriate treaty activities. Dependent spouses and minor children of E visa holders also obtain E Status. Spouses of E visa holders are eligible to apply for employment authorization.
E-1: Treaty Traders: Nationals of qualifying Treaty countries who undertake a significant amount of international trade with the United States may qualify for this type of visa. The volume of such trade must be sufficient to justify the trader or his/her employee(s) being in the United States to manage the trade, and must constitute the majority of the trader's international trade (i.e. at least 50% of the Trader's exports/imports must be to/from the USA). There is no set minimum level of trade which is considered sufficient, but obviously the lower the volume of trade the less likely one is to qualify as a Treaty Trader.
In order to be eligible for an E-1 visa, the foreign national must show that the enterprise in question is engaged, principally and substantially, in trade between the U.S. and the treaty country. Trade between the U.S. and the foreign country must already be in progress on behalf of the individual or firm to entitle one to treaty trader classification. While there is no monetary limit that must be met in order to qualify for an E-1 visa, the trading activity must be substantial enough to ensure a continuous flow of international trade items from the U.S. and the treaty country.
E1 visa registration applications center on the volume of trade between the USA and the Treaty country. The prospective Treaty Trader must demonstrate that:- There will be a substantial number of trade transactions between the US and the treaty country. There will be a substantial dollar value to the trade between the US and the treaty country. The majority of international (i.e. not including transactions within the Treaty country or within the US) trade transactions undertaken by the applicant have been, and will be between the US and the treaty country. The majority of the dollar value of trade has been, and will be between the US and the treaty country. The trader (or his/her employees seeking E1 visas) has sufficient business acumen and experience to develop and direct the trade. The trader, and any other E1 staff, are able and willing to leave the US upon termination of their E1 status.
E-2: Treaty Investors: E-2 Treaty investors may be admitted into the U.S. to develop and direct the operations of the enterprise in which he has invested or is actively in the process of investing, a substantial amount of capital. The requirements for the capital investment are such that the: Investor must be in control of the funds; Investor must put the investment capital at risk, and Investor must irrevocably commit the capital to the E-2 enterprise. i.e. the investor must be able to show proof of actual purchase or/or signed contracts and leases related to the enterprise. A showing of wire transfers to a U.S. bank account with nothing more will likely not be sufficient.
There is no monetary minimum that must be met to qualify for a visa, as USCIS looks at these applications on a case-by-case basis, but Immigration will look closely at the amount of funds or assets actually invested and the value of the business. A smaller business that is a joint venture may also qualify as an E-2 enterprise, but the foreign national would need to own at least 50% of the business, and the same analysis as to total value of business v. the foreign national’s investment would take place to determine whether or not the foreign investment is “substantial” Whether the investment amount involved can be defined as being "substantial" depends on the nature of the enterprise. For example, manufacturing enterprises usually require more substantial capital for successful operation than do retail stores or small import-export firms. The U.S. government decides on a case-to-case basis whether the amount of capital involved fits the definition.
Process of acquiring these visas: The foreign National may apply for the E-visa at a U.S. Consulate abroad as it is not necessary to file a petition with the USCIS before the visa application. If the foreign national is within the U.S, a petition may be filed to change status to E-visa. It is generally recommended that the foreign national apply for the E-visa at a U.S. Consulate as it is more convenient to do so.
Additional Questions? Please contact Kripa Upadhyay at Orbit Law, PLLC at (206) 623-3352 to discuss any additional questions you may have.