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How to qualify for 'E' treaty trader and investor visas
By BOYD F.
CAMPBELL
Attorney at Law and Civil Law Notary
Treaties between
the United States and many other countries enable foreign nationals to
get "E" treaty trader and investor visas. "E" visas are usually issued
in increments of up to two years and are valid for multiple entries into
the United States. Additional two-year periods of validity are available
almost indefinitely. U.S. consulates usually approve these visas
for a one-year stay.
Spouses and
children of E visaholders are admitted in the same category as the E visaholder,
and formerly did not have permission to be employed in the United States.
New federal legislation, however, makes it possible for dependents of "E"
visaholders to be legally employed.
The distinctions
between the two visa categories -- "treaty trader" and "investor" -- are
as follows:
Treaty trader -- E-1
The treaty trader engages in trade which constitutes an exchange, international in scope, and involves qualifying activities under trade treaties between the United States and the alien's home country. He or she must provide proof of ongoing, substantial trade with the United States in order to secure this visa.
Treaty investor -- E-2
A treaty investor must show that he or she has made a substantial investment or is actively in the process of making a substantial investment in the U.S. enterprise.
Discussion
In the case of
E-1 treaty traders, the visa applicant must show that an actual exchange
of qualifying commodities, such as goods, monies, or services is the basis
for contemplated commercial transactions, and that an identifiable exchange
of goods or services shall flow between the two treaty countries.
Title to the goods must pass from one party to the transaction to the other.
If there is no bargained-for exchange, there is no trade. The term
"trade" includes international banking, insurance, transportation, tourism,
communications, and newsgathering. There are other examples of trade
that fall within the definition.
The word "substantial"
in the "E" visa context means, generally, a flow of trade between the two
countries, involving numerous commercial transactions. Bills of lading,
letters of credit, Customs declarations, and other generally accepted internationally
recognized documents constitute proof of a trading relationship.
E-1 treaty traders must intend to conduct more than 50 percent of their
total trade volume between the United States and the treaty country.
E-2 treaty investors must show that they have irrevocably committed money
or in-kind contributions of equipment or other resources to the enterprise.
The treaty investor's money or other things of value will be considered
"at risk" in the investment if they are personal funds, unencumbered assets
belonging to the visa applicant, or a substantial thing of value (such
as a house, real property, a ship) belonging to the visa applicant.
The State Department's
Foreign Affairs Manual describes an E-2 visa petition wherein the investment
was USD15,000, the leasing of office space, and the hiring of two U.S.
workers, but it is highly likely that thta would be the lowest dollar figure
that could qualify as a "substantial investment," given the other factors
(the lease and the hiring of two U.S. workers).
For the treaty
investor to be "in the process" of investing, the visa applicant must be
nearing real business operations, not merely negotiating contracts and
engaging in site location. There should be documentary proof of actual
business investment, such as loan agreements, or banking transactions.
Uncommitted funds in a bank account do not qualify. The E-2 treaty
investor must have a controlling interest in the enterprise and develop
and direct the operation.
Unfortunately,
I am often consulted only after a foreign national has engaged in transactions
to set up his investment in the United States, and sometimes I see investments
that are so heavily leveraged that it is very difficult for me to help
the foreign national obtain an E-2 (investor) visa. It is best for
foreign investors to consult me early -- before they have engaged
in investing in the United States -- so that I can assist the foreign national
in structuring transactions that will not harm his eligibility for the
E-2 visa. Source of funds issues are also very important.
The spouses
of these visaholders may now obtain employment authorization while in the
United States.
Please keep
in mind that this visa is not generally considered a prelude to a "green
card," or "lawful permanent residence" in the United States. But
it is possible to attain lawful permanent residence in the United States.
To find out
whether your country has a treaty with the United States to provide the
availability of an E-1 or E-2 visa, please CLICK
HERE. (Note that clicking on this link will take you away from
the Immigration Law Center on the Internet.)
Boyd F. Campbell is a member of the American Immigration Lawyers Association (AILA), and the Alabama State Bar. He serves as senior vice-chair and was Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section. He served as Co-Chair of the Immigration Law Committee of the American Bar Association's Labor and Employment Law Section and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He also served as Vice-Chair of a task force that created a new International Law Section for the Alabama State Bar and served as Chair of the International Law Section from 2000 to 2002. He is also a civil law notary, having been appointed to this state position by the Alabama Secretary of State in August, 2001. For more information about Mr. Campbell, CLICK HERE.
Questions and comments about this
article may be directed to:
Immigration
Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032
U.S.A.
Telephone: (334) 832-9090
E-mail: CLICK
HERE
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