Treaty Traders, Investor and Specialty Occupation Visas: E-1 thru E-3

• Description
  
  
• Qualifications
  
  
• Other Information
  
  
• Application Items

Description
E-1 and E-2: There are two types of non-immigrant visas for persons wishing to invest in or trade with a company in the United States: a Treaty Investor visa (E-2) or a Treaty Trader visa (E-1). Neither of these visas is a substitute for an immigrant visa; those who wish to remain indefinitely in the United States should apply for the appropriate immigrant visa.

A national of a country with which the United States maintains a treaty of commerce and navigation who wishes to go to the United States: to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country; or to develop and direct the operations of an enterprise in which the national has invested; or is in the process of investing a substantial amount of capital, may qualify for a Non-Immigrant Treaty Trader or Treaty Investor visa. In some cases, the bilateral treaty only permits one type of E visa.

Note: Malaysia currently does not have a bilateral treaty with the United States qualifying Malaysians for this visa.

E-3: An E-3 applicant must meet academic and occupational requirements, including licensure where appropriate, for admission into the United States in a specialty occupation. If the job requires licensure or other official permission to perform the specialty occupation, the applicant must submit proof of the requisite license or permission before the E-3 visa may be granted. In certain cases, where such a license or other official permission is not immediately required to perform the duties described in the visa application, the alien must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.

No petition needs to be filed with DHS, however the U.S. employer must obtain a Labor Condition Application (LCA), ETA Form 9035 or ETA Form 9035E, from the Department of Labor. No more than 10,500 E-3 visas can be issued per year.


Qualifications

E-1:

1. The applicant must be a national of a treaty country.
2. The trading firm for which the applicant is coming to the United States must have the nationality of the treaty country. Note: At least 50% of the ownership of the company must have the nationality of the treaty country. Local permanent resident aliens do not qualify as majority holders of U.S. companies for E visa purposes.
3. The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade.
4. The trade must be principally between the United States and the treaty country, which is defined to mean that more than 50% of international trade involved must be between the United States and the country of the applicant's nationality.
5. Trade means the international exchange of goods, services and technology. Title of the trade items must pass from one party to other.
6. The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
7. The applicant intends to depart the United States when the E-1 status terminates.

E-2:

1. The investor, either a real or corporate person, must be a national of a treaty country.
2. The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in high-cost enterprise.
3. The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
4. The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States.
5. The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with assets of the investment enterprise are not allowed.
6. The investor must be coming to the United States to develop and direct the enterprise.
7. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive or highly specialized skills capacity. Ordinary skilled and unskilled workers do not qualify.
8. Applicant intends to depart the United States when the E-2 status terminates. To apply for a Treaty Trader (E-1) or a Treaty Investor (E-2) visa, an applicant must first establish that the trading enterprise or investment enterprise meets the requirements of the law.

E-3:

1. Be an Australian citizen;
2. Have a legitimate offer of employment in the United States;
3. The position being filled qualifies as specialty occupation employment;
4. Have the necessary academic or other qualifying credentials; and
5. The stay will be temporary; and
6. If required before the foreign national may commence employment in the specialty occupation, have the necessary license or other official permission to practice in the specialty occupation.

Other Information
E visa Time Limits: Holders of E-1 and E-2 visas may reside in the United States as long as they continue to maintain their status with the enterprise. E-3 visas are limited to 24 months, and are renewable.

Dependents: Spouses and/or unmarried children under 21 of any nationality may receive derivative E visas in order to accompany the principal alien. Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but visit for vacations only, may be eligible to apply for visitor (B-2) visas.

As a result of a recent change in the law, spouses (not dependents) of E visa holders may seek employment authorization on derivative E visas. The spouse must enter the United States on his/her E-2 visa and submit a completed Form I-765 (obtainable from DHS) along with an application fee. The processing time is approximately 4-5 months. Once the work permit (Form I-797, Notice of Action) has been received, a Social Security number can be obtained from the local Social Security office.

More E Info

More E-3 Info


Application Items
E-1 and E-2: An applicant for a Treaty Trader (E-1) or Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law.

Documents Required, 1st Time Applications: All required documents for any non-immigrant visa plus the DS-156E form

DS-156E Form

Supporting documents:

1. Cover letter describing company, position, and beneficiary. This letter must address all requirements for E visa eligibility as defined by 9 FAM 41.51 and U.S. law. It should detail and demonstrate that:"
   1. E-1:
      1. Trade is substantial; as defined by 9 FAM 41.51 N6;
      2. The trade is occurring principally between the United States and the treaty country (9 FAM 41.51 N6);
      3. And that the applicant will fill an executive/supervisory role or possesses skills essential to the firm's operations (9 FAM 41.51 N13). "
   2. E-2:
      1. The investor has invested or is actively in the process of investing per 9 FAM 41.51 N8;
      2. The enterprise is currently running or will open its doors imminently per 9 FAM 41.51 N9;
      3. The investment is substantial per 9 FAM 41.51 N10;
      4. The investment is more than a marginal one solely for earning a living per 9 FAM 41.51 N11; and
      5. That the applicant will fill an executive/supervisory role or possesses skills essential to the firm's operations per 9 FAM 41.51 N13.
   3. If the company has previously qualified for E visa status, please include the date of the initial qualification. Also, please include a paragraph concerning the applicant's unequivocal intent to depart the United States when E status ends.
2. Proof of treaty country ownership and controlling interest in the enterprise. Articles of Incorporation, Secretary of State certificates, Minutes of Board of Directors' meetings showing who the officers are and the distribution of capital, and other documents of this nature may be included.
3. Evidence of substantial trade per 9 FAM 41.51 N6
4. Evidence that trade is principally between the United States and the treaty country. U.S. Customs invoices and/or purchase receipts may be included here.
5. Applicant's resumé and, if an essential employee, evidence that employee has essential skills that the enterprise urgently needs, as well as the projected duration of this essentiality. You should include relevant diplomas, job training certificates or letters from previous employers in this section. Please include an organizational chart. You may also wish to explain why the enterprise was unable to find a qualified U.S. citizen or Legal Permanent Resident to fill the position.
6. As appropriate, G-28 "Notice of Entry of Appearance as Attorney or Representative," including contact e-mail address and phone number.

Renewals, E-1 and E-2:

Documents Required:

All required documents for any non-immigrant visa plus:

DS-156E Form (renewals, part III only; contact information must include an e-mail address).

Supporting Documents:

1. Proof that the enterprise is still operating, including copies of latest year's U.S. tax returns;
2. Statement by Human Resource Officer or Director of the enterprise stating that the applicant is still essential to the operations of the business;
3. The applicant's resumé or CV, including photocopies of all relevant diplomas; and
4. As appropriate, G-28 "Notice of Entry of Appearance as Attorney or Representative," including contact e-mail address and phone number.

Dependents: see above.

E-3:

Documents Required:
All required documents for any non-immigrant visa plus:

1. Job offer letter from the prospective United States-based employer. A treaty alien in a specialty occupation must meet the general academic and occupational requirements for the position pursuant to INA 214(i)(1).
2. Form ETA 9035, clearly annotated as "E-3 -Australia-to be processed", or an ETA 9035E dated after January 4th, 2006, specified for E-3 Australia. Either form is acceptable.
3. Evidence of academic or other qualifying credentials as required under INA 214(i)(1), and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1). A certified copy of the foreign degree and evidence that it is equivalent to the required U.S. degree could be used to satisfy the "qualifying credentials" requirement. Likewise, a certified copy of a U.S. baccalaureate or higher degree, as required by the specialty occupation, would meet the minimum evidentiary standard.
4. In the absence of an academic or other qualifying credentials, evidence of education and experience that is equivalent to the required U.S. degree.

Supporting Documents:

1. Evidence establishing that the applicant's stay in the United States will be temporary. For examples, go to the B-1/B-2 section.
2. A certified copy of any required license or other official permission to practice the occupation in the state of intended employment if so required or, where licensure is not necessary to commence immediately the intended specialty occupation employment upon admission, evidence that the alien will be obtaining the required license within a reasonable time after admission.

Dependents:

All required documents for any non-immigrant visa plus:

1. Original marriage (spouse) and/or birth certificates (unmarried children under 21) as applicable;
2. If not applying at the same time as the principal applicant: A copy of the principal applicant's passport and his/her U.S. visa. If a copy of the passport is submitted, it should be legible and the photo clearly identifiable; and
3. A letter from the spouse's employer confirming continued employment.