For individuals from certain countries who are interested in working, investing, or starting a business in the U.S., one option to consider is the “E” visa. This article will briefly address what an E-1 and E-2 visa is, discuss some key issues and requirements for each category, and how they may help you gain U.S. work authorization.
What is an E visa?
Depending on whether you are talking about an E-1, E-2, or E-3 visa, and even EB-5 visas, the requirements and benefits of the E visa category vary quite a bit. The original E visa category was established in based upon Treaties of Friendship, Commerce and Navigation (FCN) between the U.S. and a foreign state, and governed both trade and investment. The purpose of the visa was to allow for citizens of countries with friendly relations with the U.S. to be offered the opportunity to work in the U.S. based on trade or investment between the two countries. Some countries only have E-1 treaties. A current list of the participating treaty countries may be found here: https://travel.state.gov/content/visas/en/fees/treaty.html
The fundamental requirement for an E-1 or E-2 visa is that the foreign national be a citizen of the qualifying country and that the U.S. company be at least 50 percent owned by nationals of that country.
E-1 visa – Treaty Trader
The E-1 visa is for a treaty investor visa is for foreign nationals who will develop or direct an enterprise in the U.S. The foreign national is coming the U.S. solely to carry on substantial trade, which is international in scope and is principally between the U.S. and the qualifying foreign state.
What is trade? For purposes of the E-1 visa, trade is considered the existing international exchange of goods or services between the U.S. and the treaty country. Note that the trade itself must be principally between the U.S. and treaty country, and more than 50% of the total volume of international trade must be between the U.S. and the foreign treaty country.
One important factor to consider is that there must be a “continuous flow of international trade”. In other words, the trade can’t be based on a single transaction. It can however be based on binding contracts that establish the immediate exchange of items of trade.
E-2 visa Treaty Investor
The E-2 visa category is reserved for treaty investors who are coming to the U.S. solely to develop and direct the operation of an enterprise, in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital.
Remember that the investment must be at risk to the investor, so this means that a loan based on corporate assets from abroad, such as mortgage debt or a commercial loan, may not qualify. That said, an investor could use personal assets for the investment or take out a personal loan for the investment.
The investment must also be active, so having money in a bank account that isn’t being committed to the business won’t be enough to qualify for E-2 classification.
Another important factor is that the E-2 must be a commercial enterprise, and not nonprofit institution or association. So investments in land may not suffice for the E-2 as opposed to investments in developing the land itself.
Lastly, remember that the substantiality of your investment is an important factor to consider. The U.S. government will look at the balance between the amount of the investment weighed against the total cost of purchasing or creating the enterprise. In essence, they are looking at the amount normally considered sufficient to ensure the investor’s financial commitment to the successful operation of the business, and not just to earn a living for the foreign national.
Summary
A key employee from a treaty country of either an E-1 or E-2, including executives and supervisors or persons whose services are “essential to the efficient operation of the enterprise” or as a principal employer who is a person with nationality of treaty country whether in or outside U.S.; or an enterprise or organization that is 50% or more owned by treaty nationals. You should carefully consider all aspects of the business and whether it qualifies under the visa requirements before making final decisions on relocation or investments.
Remember that the nationality of the foreign corporation is determined by its owners, not place of incorporation or location of the company’s business. That said, for a foreign company that is publicly traded, the company’s nationality is presumed to be that of the country in which the company’s stock is physically listed and traded on the stock exchange if the stock is sold exclusively on that exchange. When a company is equally owned and controlled by nationals of two different treaty countries, employees of either nationality may obtain E visas to work.
Each treaty may contain specific provisions that create requirements of treaty nationals, for example U.K. citizen need to be domiciled in the U.K. to obtain the benefits of the treaty. Not being aware of the requirements could cause delays and potential disasters in well-laid plans.
This brief overview should provide you with an idea of complexity involved in E-1 and E-2 visa processing and some of the issue that could arise as you explore options for U.S. work authorization.