The Immigration and Nationality Act gives special status to citizens of countries which have entered into "treaties of commerce and navigation" or "bilateral investment treaties" with the United States. (Please see Appendix I for the list of Treaty Countries). As a result of the NAFTA treaty, Canadian and Mexican citizens are now eligible for E status.
The E non immigrant visa category is particularly useful for business owners, managers, and certain employees requiring extended periods of stay in the United States to conduct business as it relates to (a) trade between the United States and a foreign state or (b) a major investment in the United States. E visas also offer benefits which are not available in many other non-immigrant categories. For example, E visa holders can extend the duration of their visas almost indefinitely and do not have to show ties to the home country as long as they affirm that they will leave the United States when the period of their authorized stay ends (including any extensions). Further, dependent spouses of E-visa holders can request a work authorization document upon application for their own E visa status.
The E-visa category can be used by the company's principals or by certain of its employees if it is shown that they are performing functions allowed by the applicable rules. With the E visa status, a foreign national is entering the United States solely to (a) carry on substantial trade principally between the United States and the foreign state of which he/she is a national or (b) to conduct, develop, or direct the operations of an enterprise in which substantial investment has been placed. The four (4) main requisite elements of the E visa category are the following:
- a treaty must exist between the United States and another foreign state (except as noted above);
- a foreign person is entering the United States with an ultimate intention to depart the United States and not to permanently remain; (Note however, that no temporariness or intent to return to the foreign residence is required);
- majority ownership or control of the trading or investing company must be held by nationals of the foreign state; and
- foreign state citizenship must be held by the employee or principal of the company who seeks E status under the treaty.
Only citizens or nationals of a treaty country may apply for an E visa. Therefore, landed immigrants into Mexico or Canada, for example, are not eligible for E-1 or E-2 visas unless their country of origin/citizenship has entered into its own treaty of commerce and navigation or bilateral investment treaty with the United States. The U.S. Consulate in Toronto will entertain an E visa application pursuant to a treaty other than NAFTA provided that the applicant is also a resident of Canada. The U.S. Consulates in Mexico, with few exceptions, will accept for adjudication applications from Mexican citizens only.
The citizenship or nationality of an individual is determined by his or her country of citizenship. In the case of a corporation, its nationality is determined by examining its stock ownership. The nationality of such a corporation is the nationality of the individuals owning at least 50% of the corporation's stock. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the location of the exchange. However, where a corporation's stock is exchanged in more than one country, then the applicant must prove to the satisfaction of the consular officer and by the best evidence available that the business meets the nationality requirement.
In a situation where the treaty trader or investor is a corporation, individual employees entering the United States under E status must have the same nationality as that treaty business. For example, a national of England could not enter the United States as the manager of a Mexican company.
The E-1 treaty trader visa is available to enterprises engaged in trade with the United States. The trade must be "substantial", principally between the United States and the treaty country, and the employee or principal trader entering the United States must serve the company in either a managerial or executive position or is performing some "essential skills" in the company. The term "trade" is defined as including the exchange, purchase or sale of goods having intrinsic value and/or services. Trading in services is permissible, but establishing the existence of such trade through documentary evidence is more difficult. For E-1 purposes, the term "substantial" is defined as meaning where at least 51 % of the total volume of the foreign business' trade is between the U.S. and the treaty country.
The treaty country must show a continued course of trade so trade must have already commenced prior to the alien applying for E status. However, the total income earned from such trade does not have to be substantial as long as the volume of trade itself is substantial. The applicant may be a new hire and prior employment with the company is not required.
The E-2 treaty investor visa is available to nationals of the treaty country who are engaging in investment activities in the United States. The investor must show that he or she has either made a substantial investment or is actively in the process of making a substantial investment in the U.S. business. The funds must be committed and personally at risk in order to qualify and the business must be an active and substantial investment. Holding stocks and undeveloped land and / or depositing funds in a bank account would not qualify as an active investment as they do not involve the operation of an active business.
The principal investor who enters the United States must have control over the business and be responsible for the development and direction of the investment. In the case of an employee of the business, the employee must be either a manager/executive or an employee possessing essential skills which are essential to the operation of the business.
In order for an investment to be "substantial", it must be proportional to the total value of the business. For example, if the total value of the business is small, the E-2 investment must be a greater proportion of that amount. For new businesses, the investment must be the amount normally considered necessary to establish a viable business.
Although proportionality is specifically referred to as the test for substantiality in the Foreign Affairs Manual (the manual referred to by U.S. consulates), in practice the quantum of the investment is also considered. However, the Foreign Affairs Manual does not state a minimum required investment for E-2 eligibility. In a case involving $50,000.00, it is possible to argue substantiality since the Foreign Affairs Manual specifically refers to an investment of $50,000.00 but requiring a percentage of investment approaching 90-100% of the total value of the business. However, consulates in other countries often require a higher investment amount.
The investment must not be "marginal", meaning that the investment must not only support the investor and his/her family but also, in most cases, should create job opportunities for United States workers. Therefore, the investment:
- cannot be made solely to earn a living but must generate income substantial above that amount needed for living expenses; and
- must expand job opportunities;
Furthermore, the investor must not work simply as a skilled or unskilled worker.
While Canadians are visa-exempt for most categories, §212.1 (1) of the immigration regulations specifically requires any alien seeking admission as a treaty trader or investor under the provisions of NAFTA must be in possession of a nonimmigrant visa issued by an American consular officer classifying the alien under that section. Several U.S. consulates in Canada are currently issuing E visas. Mexicans may apply for the E visas in various U.S. consulates in Mexico.
If the Canadian or Mexican is already in the United States under another nonimmigrant visa category, it is also possible to apply with the Citizenship and Immigration Service (CIS) for a change of status to the E status from within the United States. However, if the Canadian or Mexican leaves the United States and attempts to re-enter, he/she will need an E visa issued by a U.S. consulate abroad to reenter the United States.
United States consulates generally believe that they should be adjudicating E visa cases rather than the CIS. Furthermore, the United States consulate office will consider the case "de novo" notwithstanding that the Immigration and Naturalization Service has issued an E visa approval in the United States. It is therefore recommended that Canadians or Mexicans seeking E classification apply at a U.S. consulate, even if they are eligible for a change of status, if the applicant will be traveling abroad on a regular basis.
E visas are generally valid for a period of five (5) years or less. The maximum visa duration permitted will depend upon the nationality of the alien. This maximum period allowed for each nationality can be determined by referring to the "Reciprocity Schedules" contained in the Foreign Affairs Manual. For example, the maximum duration of a treaty trader or investor visa for Canadian citizens is 60 months, or five (5) years. It is important to remember that a consular officer may choose to grant an E visa for a shorter period of time.
Despite the fact that E visas may be valid for up to five (5) years, treaty traders and investors may not be admitted by the CIS for an initial period of more than one (1) year and may not be granted extensions of stay in increments of more than two (2) years pursuant to federal regulation 8 CFR §214.2(e)(1). Therefore, a foreign worker in treaty trader or investor status with a five (5) year visa issued by the United States Consulate will initially be admitted by the CBP for only one (1) year. He or she can apply for an extension of stay of two (2) years or simply leave the United States and seek reentry with the valid visa. In the latter CBP will again grant the foreign worker a one (1) year period of stay.
There is no limit on the number of extensions allowed under this category. While dual intent is statutorily recognized only for H-1 and L non-immigrants, in practice, dual intent is recognized for E non-immigrants as well.
E-2 Applications made at the U.S. consulates in Mexico and Canada require a processing period that varies from post to post.