This program allows companies that conduct at least 50% of its trade with the U.S. to transfer employees to the U.S. in certain positions.
E-2 Visa Program:
This program allows investors to come to the U.S. solely to develop and direct the operations of a company in which they have invested or are actively are in the process of investing.
Rules that apply to both E-1 and E-2:
- Nationality: The treaty trader, investor, or employee being transferred must have the same nationality as the treaty country.
- The E-1/E-2 must have the intention to depart the U.S. when the status ends and must be seeking to enter the U.S. for a temporary. The L-1 status does not have this requirement.
- E-1 and E-2 are generally applied for and adjudicated by the consular officer at the U.S. Embassy of the applicant’s nationality.
E-1 Treaty Traders:
- The foreign company must conduct trade primarily and substantially between the U.S. and the treaty country of its nationality. This means that over 50% of the volume of international trade of the company is conducted between the U.S. and the treaty country.
- The activities of the foreign company must be trade in goods or services. Trade must be actual, meaningful, and for consideration. Trade must already be in progress. Existing trade includes successfully negotiated binding contracts.
- The trade must be substantial which means that the consular office will look for high a volume of trade rather than the monetary value of a few transactions.
- Trade must be international and does not include domestic trade.
- Items that may be traded include but are not limited to good, services, international banking, insurance, monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, some news-gathering services. Goods are tangible merchandise having value.
E-2 Treaty Investors:
- Treaty Investors must have possession and control of the capital invested or being invested.
- The source of the capital being invested must be lawful and the applicant must prove it is so.
- The U.S. business being invested in must be a real and active business producing services or goods.
- The foreign investor must also establish ownership of at least 50% of the E-2 company.
- The investor must commit the capital to the E-2 company and the investment capital must be at risk. So the investor must be actively in the process of investing.
- The investor must be coming to the U.S. to develop and direct the E-2 company. If an employee is coming to the U.S. on E-2 they must be an executive or supervisory position and possess the skills essential to the U.S. Company’s operation.
- The investment amount must be real. Generally the lower the cost of the Company the higher proportionately, the investment must be to be considered substantial.
- The investment must be at risk. This means that if the funds are not subject to partial or total loss then it is not an investment. Funds must be personal assets and personal funds. Therefore, loans or mortgage must be backed by the investor’s personal assets or property.
- The investment cannot be made solely for the purpose of earning a living. The investor must have available other means of earning a living.
- The investment must be irrevocable. This means that funds must have already been committed to the U.S. business prior to the application or the investor must show that he or she is actively in the process of investing to the point that the funds can be lost.
**This is only an outline of the issues involved in the E nonimmigrant Investor category. This document does not address all of the issues or documents involved in a complex employment immigration case. Please feel free make an appointment to discuss further with us the options available to you in your specific case.