What is the E-Visa?

The E-visa category allows a non-immigrant to engage in international trade if the individual’s home country is a treaty country.  A treaty country is a country with which the United States maintains a treaty of commerce and navigation.[1]  The E-visa category provides a path for individuals who enter the United States for international trade, commerce, and free trade agreements.  The treaty trader or investor must be of the same nationality of the treaty country as “determined by the authorities of the foreign state of which the alien is a national.”[2]

The E-visa is an example of foreign policy considerations in the non-immigrant visa context. Many E-visas are still available under decades old treaties.  For example, Iran is an E-1 and E-2 country based on a treaty signed on June 16, 1957 prior to the Islamic revolution.[3]  On the other hand, Brazil has no treaty with the United States that allows for an E-visa.[4]

E-1 – Treaty Traders

The E-1 category is for treaty traders.  Treaty traders engage the area of international trade in areas such as goods, services, international banking, insurance, transportation, and technology.    To qualify as an E-1 treaty trader the individual must:

1) be a national of a country with which the United States maintains a treaty of commerce and navigation;

2) carry on substantial trade;

3) carry on principal trade between the United States and the treaty country under which the individual qualified for the E-1 visa.[5] 

The individual is initially admitted for two years, but may remain in the United States indefinitely as long as the trade activities that qualified the individual for the E-1 visa continues.  The E-1 visa category is not a path to lawful permanent residency.

E-2 Treaty Investors

The E-2 visa allows an individual from a treaty country to be admitted to the Unites when investing a substantial amount of capital in a U.S. business.[6] Certain employees of the business may also be eligible for the category.  To qualify for the E-2 visa an individual must prove:

1) the individual is a national of a country with which the United States maintains a treaty of commerce and navigation;

2) have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and

3) be seeking to enter the United States solely to develop and direct the investment enterprise.[7]  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.[8]

The investment must be substantial and more than a small amount solely for the purpose of earning a living.[9] A substantial amount of capital is considered “substantial” in relationship to the total cost of either purchasing an established enterprise or establishing a new one, sufficient to ensure the investor’s financial commitment to the success of the operation, and of a magnitude to support the likelihood that the investor will develop and direct the enterprise with success.[10]  The investment must be at risk and subject to partial or total loss if the investment fails.[11] The investment may not be marginal.  A marginal enterprise is one that does not have the present or future capacity to provide more than a minimal living for the investor.[12]

The E-2 visa holder is initially admitted for a period of two year, but may remain in the United States indefinitely as long as the investment that qualified the individual for the E-2 visa continues.  The E-2 visa is not a path to lawful permanent residency.

[1] INA § 101(a)(15)(E)

[2] 8 C.F.R. § 214.2(e)(7)

[3] http://travel.state.gov/content/visas/english/fees/treaty.html

[4] Id.

[5] INA § 101(a)(15)(E)(i); http://www.uscis.gov/working-united-states/temporary-workers/e-1-treaty-traders

[6] INA § 101(a)(15)(E)(ii); http://www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors

[7] Id.

[8] 8 C.F.R. 214.2(e)(2)(i)

[9] Id. 

[10] http://www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors

[11] 8 C.F.R. 214.2(e)(2)(i)

[12] Id.; http://www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors