E-1 and E-2 Visas

Name: Cambridge Immigration Law
Address: 111 Rice Street, Cambridge, MA, 02140, US

March 28, 2024

What is an E-1 visa?

The E-1 visa is a temporary, nonimmigrant visa for people from countries having qualifying treaties with the United States and who are entering the US to engage in substantial trade between the applicant’s home country and the US. It is also commonly referred to as the “Treaty Trader” visa.

What are the requirements for an E-1 visa?

Nationality: The applicant must be a national of a country that has an eligible treaty with the United States.
Substantial Trade: Both the foreign company and the US company must have substantial, continuous trading.
Trade is Principal Activity: The trade must be the principal activity of the US business in which the applicant is investing or is employed.
Substantial Investment: There must be a substantial investment of the applicant’s own capital in the US business or, alternatively, the applicant must be an essential employee with specific qualifications that are necessary for the efficient operation of the trade.
Employee Role: The applicant should be an essential employee of the company, occupying either a supervisory or executive position, or possessing specialized skills that are vital for the efficient operation of the trade. Ordinary skilled or unskilled workers typically do not qualify for this visa.

Intent to Depart: The E-1 visa is a nonimmigrant visa, which means that it is temporary and does not grant permanent residency in the US. The applicant must intend to depart the US when their E-1 status expires. This is a tricky requirement because it is difficult to show an intent to depart in two years when you are building a business investment in the US. You need to play this requirement both ways: show that not only is the investment viable and somewhat long term, but also show that you do not have an intention of living permanently in the US past your E-1 investment period. This would not be a good visa if you intend to apply for permanent residency in the US.

What kind of businesses can I open on an E-1 visa?

An E-1 Treaty Trader visa is intended for individuals involved in substantial trade between the United States and their home country. The focus of this visa category is on trade, which includes the exchange of goods, services, technology, international banking, insurance, tourism, and more. Here are some examples of the types of businesses that qualify for an E-1 visa:

Import/Export Companies: Businesses involved in importing goods from the treaty country and exporting goods to the US, or vice versa, qualify. This could include distributors, wholesalers, and import/export companies.
Service Providers: Companies such as consulting firms, technology services, and international event planning qualify.
Tourism and Hospitality: Businesses that facilitate tourism and hospitality activities between the treaty country and the US, such as travel agencies or hotels.
International Franchises: A franchise with a substantial trade relationship between the treaty country and the US is eligible.
Manufacturing Companies: Manufacturers engaging in substantial trade between the US and the treaty country qualify. This includes companies that import raw materials for manufacturing in the US or export finished products.
Transportation and Shipping: Companies involved in shipping and transportation of goods between the treaty country and the US are eligible.
Cultural Exchange Programs: Some educational and cultural exchange programs that involve significant international activities qualify.

What is an E-2 visa?

The E-2 visa is a temporary, nonimmigrant visa for people from countries that have qualifying treaties with the United States and who are entering the US to make substantial investment in a US business. The E-2 visa holder typically wants to open a completely new business which may or may not have ties to the treaty country.

What are the requirements for an E-2 visa?

Nationality: The applicant’s home country must have a qualifying treaty of friendship, commerce, and navigation with the United States.
Substantial Investment: The applicant must make a substantial investment in an existing or new US business. The investment should be enough to ensure the successful operation of the business. There is no fixed minimum investment amount required, but the investment should be “substantial.” It should also be able to create jobs and support the business’s growth. The money must be “at risk,” which means that it is already committed to the enterprise.
Source of Funds: The funds used for the investment should come from a legitimate and lawful source. The applicant should be able to demonstrate the origin of the funds.
Ownership and Control: The applicant must own a significant portion of the US business and have control over its operations. The investment should not be a passive investment, meaning the investor should be actively involved in managing and directing the business. The E-2 investor visa is not for an ordinary skilled or unskilled employee; the principal E-2 investor must be directing and managing the investment, not just working there.
Not “marginal”: The business must not be “marginal,” meaning it should have the capacity to generate more than just enough income to support the investor and their family. The business should have the potential to create jobs and contribute to the US economy.
Investment in Active Business: The investment must be in an active, for-profit business. Speculative or idle investments, such as undeveloped land or stocks, generally do not qualify.
Business Plan: The applicant must provide a detailed business plan, which outlines the nature and purpose of the business, as well as how the investment will contribute to its success.
Intent to Depart: The E-2 visa is a nonimmigrant visa, which means that it is temporary and does not grant permanent residency in the United States. The applicant must intend to depart the US when their E-2 status expires. This is to ensure that the visa is being used for temporary, nonimmigrant purposes. However, this is a tricky requirement because it is difficult to show an intent to depart in two years when you are building a business investment in the US. You need to play this requirement both ways: not only show that the investment is viable and somewhat long term, but also show that you do not have an intention of living permanently in the US past your E-2 investment period. If you eventually want to apply for permanent residency, you should consider another visa.

How long will my E-1/E-2 visa be valid?

The E-1/E-2 visa is generally issued in two year increments and can be renewed as many times as USCIS or a US embassy will allow the renewal.

How long will it take USCIS or the Embassy to approve my E-1/E-2 visa?

The processing times for an E-1/E-2 visa vary depending on a range of factors, including the volume of visa applications, the specific US embassy or consulate where you’re applying, the strength of your application, whether you apply for premium processing (only available in the US), the availability of embassy interviews and whether the embassy requirements “administrative processing.”

What is the process for applying for an E-1/E-2 visa if I am outside the US?

Application Preparation: Before submission, you need to prepare a strong application to meet all of the legal requirements for E-1/E-2 eligibility. Your application must show proof of trade, business ownership, employment qualifications, and intent to depart the US. This process can take several weeks or months, depending on your individual circumstances.
Application Submission: Once you’ve compiled all the necessary documents, you’ll need to submit your application on online Form DS-160 and pay the DS-160 fee. Then, follow your embassy-specific instructions about processing the E-1/E-2 visa–all embassies and consulates have different instructions and processes.
Visa Interview: You will have a visa interview at the US embassy or consulate. The availability of interview slots vary widely (from a few days to many months). During the interview, the consular officer will review your application; ask you questions about your trade, business, and qualifications; and make a determination about your eligibility for the E-1/E-2 visa. Sometimes you will get a decision on the spot, and you’ll be given instructions about how to pick up your passport once the visa is put into it. Or, you may not get a decision and you will get paperwork letting you know that you need to provide something more to the embassy. Or, your case may go into administrative processing. Or, you may get paperwork showing that the visa was denied and for what reason.
Administrative Processing: In some cases, the US embassy/consulate will tell you that your case is under “administrative processing.” Generally, you will not be told why your case is under administrative processing, nor will you be told how long this step will take. It could take months, even years.
Visa Issuance: If your visa application is approved, the U.S. embassy or consulate will affix the visa to your passport. You’ll need to wait for the processing of your passport with the visa sticker, which can take a few days to a couple of weeks.
Processing Time: Overall, the entire process from application submission to visa issuance could take several weeks to a few months. However, processing times change, and the processing time at the time you submit your application may not continue to be the processing time as the case is being processed.

Can I apply for an E-1/E-2 visa if I am in the US?

Yes, if you are in the US you can apply for an E-1/E-2 visa if you are in another lawful status at the time that you apply for the “change of status” to E-1/E-2.

What is the process for applying for an E-1/E-2 visa if I am outside the US?

If you are already in the US and meet the eligibility criteria for the E-1/E-2 visa, you can follow these steps to change your status from your current visa status to E-1/E-2 status:

Change of Status Application: If you are currently in the US under a different nonimmigrant status, you can apply for a change of status with the United States Citizenship and Immigration Services (USCIS). You will file Form I-129, Petition for a Nonimmigrant Worker, along with all required supporting documentation. You can also file Form I-907, for an additional fee, so that USCIS guarantees communication with you within 15 days of filing your application. Note: “communication” does not mean approval. It could mean approval, but it could also mean a request for more information or a denial.
Extension of Stay: If you are already in the US under E-1/E-2 status and your authorized stay is about to expire, you can apply for an extension of stay using Form I-129 as well. This will allow you to continue your E-1/E-2 activities in the US for 240 days or until the I-129 is approved, whichever comes first.

Can my family get E-1/E-2 visas with me?

Yes! If you are eligible for an E-1/E-2 visa, your spouse and unmarried children under the age of 21 can get E-1/E-2 with you or after you. Your spouse and children do not have to have the same nationality as you or a nationality of E-1/E-2 countries. Your spouse will be able to work for any employer as the spouse of an E-1/E-2 principal visa holder!

Can my employees get E-1/E-2 visas with me?

Sometimes. For employees to be eligible under your E-1 visa, the employee must

Be the same nationality of the principal E-1
Meet the definition of “employee” under relevant law
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications that make the employee’s services essential to the efficient operation of the treaty enterprise.

What is the minimum investment to be eligible for an E-1/E-2 visa?

Unlike some other visa categories, the E-1/E-2 Treaty Trader visa does not have a strict minimum investment requirement.

Instead of a specific monetary threshold, the E-1 visa focuses on the concept of “substantial trade.” This means that the trade conducted between the applicant’s home country and the United States should be sizable and continuous. The applicant’s investment should demonstrate a commitment to the success of the enterprise. In short, your investment needs to make business sense in relation to the business that you are setting up.

There is also no fixed minimum investment amount for the E-2 visa. The amount of investment will vary based on factors such as the type of business, its size, location, and overall cost. The law requires the investment to be substantial, which means sufficient to ensure the successful operation of the business and to demonstrate the investor’s commitment to the business’s growth and viability. The investment should not be marginal, meaning it should have the potential to generate more than just enough income to support the investor and their family.

The investment should be significant enough to cover the costs associated with starting or purchasing the business, such as purchasing assets, leasing space, hiring employees, and covering operational expenses. Generally, E-2 visa applications that show a larger investment have a better chance of being approved, especially if the investment aligns with the business’s needs and potential for growth.

The investment must be at risk, that is, not just sitting in your bank account. You must have already spent sizable amounts of your investment in physical space, employees, equipment, marketing, and other costs necessary to buy or open a business.