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Work permits and E1/E2 visas

2015.10.11

from workpermit.com

 E1 visa and E2 visa (Treaty Visas)

Introduction to Treaty visas

Over the years the United States has signed treaties with most of the other countries in the world, in particular treaties of 'Friendship, Commerce and Navigation'. These treaties are designed to promote trade and investment between the USA and the other contracting state, thereby encouraging good relations and peace. More recently the USA has entered into a number of Bilateral Investment Treaties with mainly former communist states, designed to promote investment but not generally conferring any trade-related immigration privileges.

Nationals (individuals or companies) of countries with such Treaties with the United States can obtain visas to work in the USA in order to develop and direct their investment in and/or trade with the USA. Such visas are called E-visas, and come in two types:-

The E1 Treaty Trader:

Nationals of qualifying Treaty countries who undertake a significant amount of international trade with the United States my 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.

The E2 Treaty Investor:

Nationals of qualifying Treaty countries who have made a significant investment in the United States may qualify for E2 Treaty Investor status. Like the E1 visa, there is no set minimum level of investment which may qualify for E2 status, but the lower the investment the less likely one is to qualify. Again, the level of investment must be sufficient to justify the treaty national (or his/her employees) presence in the United States. The investment must be in an operating business – i.e. simply buying property or stocks and bonds does not qualify. Also, a substantial part of the investment must have been made before applying for E2 status.

E1 Visa Countries

The following countries have treaties with the United States that allow qualifying nationals to apply for Treaty Trader status:-

Argentina

China (ROC)

France

Italy

Netherlands

Sweden

Australia

Colombia

Germany

Japan

Norway

Switzerland

Austria

Costa Rica

Greece

Korea

Oman

Thailand

Belgium

Denmark

Honduras

Latvia

Pakistan

Togo

Bolivia

Estonia

Iran

Liberia

Philippines

Turkey

Brunei

Ethiopia

Ireland

Lux'bourg

Spain

U.K.

Canada

Finland

Israel

Mexico

Suriname

Yugoslavia

Nationals of qualifying countries may apply for an E1 visa in order to 'Develop and Direct' import/export trade (of goods or services) between their own country and the US. They may also apply for E1 visas for key managerial and specialist employees. Unlike the L1 visa, there is no requirement for such employees to have worked for the Trader for at least one year in the last three.

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.

  • The trader has a past history of conducting trade between the US and the treaty country.

E2 Visa Countries

E2 visas may only be applied for by people or companies from the following countries:

Argentina

China (ROC)

Georgia

Kyrgyzstan

Pakistan

Switzerland

Armenia

Colombia

Germany

Latvia

Panama

Thailand

Australia

Congo

Grenada

Liberia

Philippines

Togo

Austria

Costa Rica

Honduras

Luxembourg

Poland

Trinidad and Tobago

Bangladesh

The Czech Republic

Iran

Mexico

Romania

Tunisia

Belarus

Ecuador

Ireland

Morocco

Senegal

Turkey

Belgium

Egypt

Italy

Moldovia

The Slovak Republic

The Ukraine

Bosnia-Herzegovina

Estonia

Jamaica

Mongolia

Spain

United Kingdom

Bulgaria

Ethiopia

Japan

Netherlands

Sri Lanka

Uzbekistan

Cameroon

Finland

Kazakhstan

Norway

Suriname

Yugoslavia

Canada

France

Korea

Oman

Sweden

 

Unratified but signed treaties exist with: Albania, Azerbaijan, Haiti, Jordan, Nicaragua, and Russia.

Investors from qualifying countries may apply for an E2 visa in order to 'Direct and Develop' their investment. They may also apply for E2 visas for key managerial and specialist employees. In contrast to the L1 visa, there is no requirement that such employees have worked for the Investor for at least one year in the last three, nor is it necessary for the Investor to continue operations outside the USA while the Investor or his/her employees are in the USA.

E2 visa registration applications should demonstrate that:

  1. There has been and will be a substantial capital investment in the US. There is no specific cash threshold defined, but $40,000 is probably an absolute minimum, and any investment below $100,000 would need a very strong case to support it.

  2. Risk Capital has been Committed; the investment must entail some risk to the investor (it may not be all in the form of unguaranteed credit). At a minimum, there must be a long-term lease of an office in the US

  3. The investor will control his/her investment. In this respect control is considered to entail owning over 50% of the US enterprise.

  4. The cash invested is not marginal when compared to the total investment. In general, unless it is common to the industry to have higher amounts of 'leveraging' (such as in the property industry), 51% of the investment should be in the form of cash equity. Where debt is secured against other assets of the investor, it is considered to be 'at risk', and may be considered as part of the equity invested.

  5. The enterprise is (or will be) active. In order to be 'Directing and Developing' their investment, the investor will require an enterprise that involves active management.

  6. US workers are (or will be) employed. The treaties envisage more than just creating a job for the principal investor, but there is no requirement to employ a particular number of US citizens. Obviously, employment of large numbers of US citizens would be viewed very favorably.

  7. The enterprise, or its principal investor, has a past history of successful trading.

  8. That the 'investor' has sufficient acumen to direct and develop the investment enterprise.

  9. That the principal investor, and any other E2 staff, are able and willing to leave the US upon termination of their E2 status.

E1 and E2 Employees

Once the principal applicant has obtained registration as a Treaty Investor or Trader, it is a relatively straightforward task to obtain E visas for qualifying employees. Obtaining the registration usually takes 4 to 6 weeks, and obtaining subsequent employee visas usually takes 10 to 15 working days.

Two types of employee qualify for E visas:-

Executives & Managers:

Executives and Managers should be going to develop and direct the trade or investment of the principal investor/trader in the USA. Such personnel should be able to demonstrate their executive or managerial pedigree, though there is no requirement that they have worked for the principal trader or investor for at least one year, as there is with the L1 visa. Generally a resume and supporting letter from the principal is all the evidence required.

Specialist or Essential Skilled Workers:

Visas for this type of employee are somewhat more difficult to obtain. One must demonstrate that:

  1. A US resident worker could not fill the position;

  2. The employment of the treaty national is necessary for the running of the principal trader or investor's business in the USA;

  3. US workers will be trained to replace the treaty national (details of the proposed training must be given).

If the above criteria are met then an E-visa can be obtained, but is considerably more difficult to renew than an Executive/Managerial E visa.

Note that, a 'visa issuance fee' is often required in addition to the usual visa application fee for E visas. This usually amounts to $100-200. Also E-visa employees must be of the same nationality as the principal investor or trader.

Dependents of E-visa workers are also issued E visas. However, these are not authorized for employment, though such dependants may engage in study.

Treaty visa application process flowchart

You complete our on-line appraisal form

workpermit.com considers the application. If your company, the position and the candidate are eligible for registration as an E1 Treaty Trader or E2 Treaty Investor, workpermit.com e-mail to you:
a. A formal instruction form to return
b. Details of any additional data required, and confirmation of which documents we need

You post documents to workpermit.com at 11 Grafton Street, London W1X 4NP

Workpermit.com complies your application and submits it to the Treaty Visa section at the appropriate US consulate – processing takes 4-6 weeks

After registration as a Treaty Trader or Investor, visas can be obtained for principal applicants (if they are a person rather than a company), employees and dependants in 10 to 15 working days. You provide us with relevant information and we prepare and submit the application to the Treaty Visa section.

Frequently Asked Questions About Treaty Visas

Can I gain E status as a self-employed professional?

No. The principal applicant should be going to the USA to 'develop and direct' his/her trade or investment, not to be a factor of production or trade in his/her own right. Thus accountants, IT consultants, doctors, lawyers, etc, cannot obtain E status to enable themselves to practice their profession in the USA.

How long can I stay in the USA in E status?

Indefinitely, provided the level of international trade or the value of you investment in the US remains sufficient to justify your being there. Registration is initially valid for between two and five years, but can be renewed any number of times.

Why isn't my country eligible for E status?

The treaties which give rise to eligibility for E status are generally on a reciprocal basis, in that they will also entitle US persons and companies to obtain similar immigration rights in the other treaty country. Nations with restrictive inward investment policies or currency controls are unlikely to have such a treaty with the United States. Further, most recent treaties entered into by the United States with e.g. the former Communist countries tend to be Bilateral Investment Treaties, conferring only E2 eligibility on nationals of the other contracting state. Note also that existing treaties may be suspended if the United States' relationship with the other treaty signatory deteriorates significantly or that country is subject to international sanctions, etc.

What is the minimum amount of trade or investment needed to qualify?

There is no set minimum level, though obviously the lower the amount of trade or investment the less likely it is that the application will succeed. The amount necessary will also depend on the type of business or trade engaged in.

What are the alternatives if I or my employees do not qualify for E-status?

The L1 intra company transfer visa is the most obvious choice, though the H1B speciality occupation visa is also a possibility. In addition, the EB-5 Immigrant Investor is an option which eventually leads to US permanent residency. However, this visa is extremely difficult and time-consuming to obtain.

Can E-visa dependants work?

E dependants can now obtain a general work authorization. This work authorization must be applied for separately, though.