Understanding the nuances between E-1 and E-2 visas can illuminate the pathways available for international business endeavors in the United States. While both visas share the common thread of facilitating work authorization and industry in the U.S., their distinctions lie in the realms of trade and investment. Knowing the eligibility criteria, application process, and accompanying benefits is essential for individuals seeking to embark on their ventures within the U.S. legal framework, especially given the fact that most of these applications are filed at a U.S. Consulate or Embassy around the world. Each Consulate/Embassy has developed its own processes and procedures.
This guide will help you decipher the intricacies of E-1 and E-2 visas, paving the way for informed decisions and successful international commerce pursuits.
- Similarities between E-1 and E-2 visas
- What is an E-1 visa?
- What is an E-2 visa?
- How do I get an E-1 or E-2 visa?
- Can my family accompany me if I have an E-1 or E-2 visa?
Which E Visa Is Best For You?
Our legal team at Levin and Pangilinan PC have decades of experience assisting foreign traders and investors to successfully obtain their E-1 or E-2 visas. No outcome can ever be guaranteed, but if you contact us today, we’ll put our knowledge and expertise to work for you.
Similarities between E-1 and E-2 visas
E-1 and E-2 visas are similar in many ways. They are both nonimmigrant (temporary) work visas and, as such, do not provide a direct pathway to either lawful permanent residency (a green card) or United States citizenship. Both of these visas are focused on international business, either through direct trade (E-1) or investment (E-2). However, the most crucial similarity between the E-1 and E-2 visas is the fact that a treaty must exist between the United States and the applicant’s home country. The Foreign Affairs Manual specifically states that the applicant’s country of citizenship must be:
- A country which is in a treaty relationship of commerce and navigation with the United States;
- A country which has another qualifying agreement with the United States;
- A country which has been given qualifying status by an act of Congress.
The U.S. Department of State maintains a list of E-1 and E-2 eligible countries. The list includes which of the above criteria is the basis of each country’s eligibility. The business must have the applicant’s nationality. For example, a large software product company must show that at least 50% of its owners are citizens of the eligible country. Similarly, a small restaurant has the same requirement. In this way, the business is recognized as having the nationality of the owners. A deeper document analysis is required when the business has many shareholders.
After entering the United States, E-1 and E-2 nonimmigrants are usually allowed to remain in the U.S. for two years, i.e., the person will have nonimmigrant status valid for two years. So long as the business or enterprise is in good standing, the two-year status may be renewed indefinitely in two-year increments. However, E-1 and E-2 visas are purely nonimmigrant, so proof of nonimmigrant intent, i.e., evidence of the intention to return to their home country, is needed.
Certain employees of E-1 and E-2 visa holders traders may also qualify for their own E-1 or E-2 visas. To do so, they must be of the same nationality as their employer, and the nature of their employment must be critical to the business’s operations.
What is an E-1 visa?
The E-1 visa is for a business that intends to engage in international trade. The trade can be either the import or export – or both – of any qualifying goods or services. These goods and services do not have to be material in themselves; for example, technological, banking, insurance, and tourism services also qualify.
When looking at an E-1 visa application, the consular officer will look to see if:
(1) The Requisite treaty exists;
(2) The Individual and/or business possess the nationality of the treaty country;
(3) The Activities constitute trade within the meaning of the law;
(4) Applicant must be coming to the United States solely to engage in substantial trade ;
(5) The Trade is principally between the United States and the treaty country of the applicant’s nationality ;
(6) The Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
(7) The Applicant intends to depart the United States when the E-1 status terminates.
What is an E-2 visa?
The E-2 visa is for foreign investors who have either already invested or intend to invest a “substantial amount” of money or other assets into a U.S. business. To qualify, the nature of their investment must meet the following characteristics:
- The amount must represent a significant share of the overall cost of starting or acquiring the business;
- The amount must also demonstrate the investor’s commitment to the success of the venture;
- It must be at risk of partial or complete loss if the business fails;
- It must not have been obtained in any way, directly or indirectly, through criminal activity.
The investors themselves must also demonstrate that they either own at least 50% of the business or control at least 50% of its operations.
When looking at an E-2 visa application, the Consulate/Embassy will look to see if:
(1) the requisite treaty exists ;
(2) the individual and/or business possess the nationality of the treaty country ;
(3) the Applicant has invested or is actively in the process of investing;
(4) the Enterprise is a real and operating commercial enterprise;
(5) the Applicant’s investment is substantial ;
(6) the Enterprise is more than a marginal one solely for earning a living;
(7) the Applicant is in a position to “develop and direct” the enterprise;
(8) the Applicant is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
(9) the Applicant intends to depart the United States when the E-2 status terminates.
Complications in Applying for an E-1 or E-2 visa
In today’s post-COVID-19 pandemic world, the U.S. Embassies and Consulates worldwide continue to struggle with the volume of applicants for E-1 and E-2 visas. Typically, a Consulate or Embassy will require an applicant to submit the DS-160 – Online Nonimmigrant Visa Application, which is used for all nonimmigrant visas to the United States, to initiate the process. But then the Applicant is required to demonstrate that it meets the substantive requirements of documenting whether the requirement ownership is present or if the investment is substantial. The Consulate or Embassy utilizes the DS-156E – Nonimmigrant Treaty Trader/Treaty Investor Application, to capture the basic information about the treaty business. However, the Applicant is required to submit supporting documentation that demonstrates to the satisfaction of the Officer that the applicant will perform the services declared in the application.
The current nonimmigrant visa application fee for an E-1 or E-2 visa is $315, but additional fees may apply depending on the country of origin. Applicants are advised to consult the reciprocity schedule to determine if extra application fees are required.
After receiving all of the government forms and supporting documents, the consular officer may request additional information or documentation or invite you to a visa interview. The appointment does not mean the visa has been issued or is guaranteed to be issued. The purpose of the interview is for the consular officer to review the application and determine if any information is required through verbal testimony. Only after the consular officer is satisfied that the business/enterprise meets the requirements for the Foreign Affairs Manual, the applicant has the ability to perform the stated services in the U.S. (e.g., to direct and guide the investment for an E-2 business), and there are no inadmissibility issues will a nonimmigrant visa be issued.
Experience has shown that while some parts of the E-1 or E-2 visa application process are straightforward, understanding the underlying policies, case law, interpretations, and current trends helps guide an application to success without the need for requests for evidence or, worse, being denied.
Can my family accompany me if I have an E-1 or E-2 visa?
Spouses and unmarried children under the age of 21 are usually eligible to receive their own E-1 or E-2 dependent visa. It is not necessary, however, for the spouse and children to be citizens of the same qualifying country as the principal visa holder. Generally, E-1 and E-2 spouses are also eligible to work or study while residing in the U.S.
Consult with our Bay Area Immigration Attorneys
Our legal team at Levin and Pangilinan PC have decades of experience assisting foreign traders and investors to successfully obtain their E-1 or E-2 visas. No outcome can ever be guaranteed, but if you contact us today, we’ll put our knowledge and expertise to work for you.
The information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this blog are for general informational purposes only.
