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The “E” Non-Immigrant Visa

P. Tristan Bourgoignie, Esq.*

The “E” non-immigrant visa is based on a bilateral treaty of friendship and commerce between the United States and an individual’s country of origin. Philosophically, the idea behind these visas (and most others) is that the foreign individual come to the U.S., invest his/her money, and in exchange for being given a visa, that they offer some benefit to the U.S., either economically, through employment, or some other manner.

The “E” category can be divided into 2 branches: The “E-1” treaty-trader visa and the “E-2” treaty investor visa.  As not all treaties between governments provide for both types of visa, one must look to the terms of the treaty in order to determine whether individuals from a certain country can benefit from either category or only one of the two. The treaty between France and the U.S. provides for both categories, thus French nationals may apply for either of these visas depending on their particular situation and desires.

Generally, requirement for an E visa is a treaty between the U.S. and country of origin (‘Treaty Country”); Nationals of the following countries may obtain an E-1 visa: Argentina, Australia, Austria, Belgium, Bolivia, Brunei, Borneo, Canada, China, Taiwan, Colombia, Costa Rica, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Liberia, Luxembourg, Muscat-Oman, Netherlands, Nicaragua, Norway, Pakistan, Paraguay, Philippines, Spain, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Northern Ireland, Vietnam and Yugoslavia.   Nationals of the following countries may obtain an E-2 visa: Albania, Argentina, Australia, Austria, Belgium, Canada, China, Taiwan, Colombia, Costa Rica, Ethiopia, France, Germany, Honduras, Italy, Japan, Korea, Liberia, Luxembourg, Muscat-Oman, Netherlands, Nicaragua, Norway, Pakistan, Paraguay, Philippines, Spain, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Northern Ireland, Vietnam and Yugoslavia. The individual applying for the visa must have the same nationality as the Treaty Country.  This means that should the individual decide to open a U.S. company, 50% of the shares of said must be held by individual(s) who are nationals of the Treaty Country.

Besides the aforementioned general requirements, each visa category has its own special requirements:

E-1 Treaty Trader. This visa is designed for individuals who conduct international trade or import/export operations between the U.S. and their country of origin.  The formal requirements include: a) Substantial Trade. At least 50% of the gross revenue of the enterprise or the amount international trade conducted by the business must be between the U.S. and the country of origin. Thus, an application based on only 1 export operation would most likely not qualify for this visa.  However, if the individual can show agreements or funding for long term, substantial trade and exchange, then applying with only one actual exchange may be sufficient. b) The individual must be coming to the U.S. to supervise the operations or have special knowledge which are required by the U.S. employer/company; and  c) the individual will leave the U.S. once their period of authorized stay has expired.

E-2 Investor Visa. This visa is given to someone who has made an active, substantial investment in the United States, which investment is not deemed marginal. The investment must be active. A passive investment such as placing funds in the stock market or investment account alone, would not qualify. Active requires that the investment be at risk, and that the investor risks losing the investment amount should the operation not work. Notwithstanding the foregoing, however, an active investment does not mean an ill conceived or dangerous investment. There are many legal means of limiting the investor’s risk. For example, the use of an escrow clause which requires visa issuance as a condition precedent to actually closing on a deal is one such mechanism. Similarly, the type of investment vehicle used may also provide the investor with both sufficient income and sufficient protection in order limit any adverse consequences of a fluctuating marketplace. For example, depending on the circumstances an active investment in commercial real estate might qualify for E visa status. Both of these mechanisms allow the investor to either stop the investment before starting, or should things go badly, to sell the property without loss of, or very limited loss of, capital investment.

Types of investments which qualify as active would include: Loans secured by the individual’s own assets, unsecured loans based on the individual’s signature, cash placed in a corporate bank account, in some instances, transfers of goods, materials, intellectual property as long as the fair market value can be determined. Non-qualifying investments would include: Mortgage debt or other loans secured by the new business’ assets, generally recurring costs which any normal enterprise undertakes, such as rental payments, inventory purchases, etc., cash held in personal bank accounts, not transferred to the enterprise.

The investment must be substantial.  The regulations do not require a definitive sum in terms of the amount of investment.  What the regulations do require is that the investment be sufficient in order to support the business idea which the individual would like to pursue. For example, an investment to open a restaurant or bar would logically be much higher than the investment to open a consulting business where there is no public access, no liquor licenses required, nor major infrastructure needed. Thus, one must look closely at one’s idea and to plan accordingly. In general, however, individuals should plan on an active investment in the range of $100,000 or so, and they should prepare a detailed business plan outlining the use and management of their investment.

The investment may not be marginal. This means that the investment is not an attempt by the investor to create employment for himself or herself.  Again, one must keep in mind the philosophy behind these visas, namely to offer some benefit to the U.S. As a result, the investor will need to show a source of income besides the anticipated income from the investment vehicle being contemplated.

The individual agrees to leave the U.S. once the visa period has expired

Categories of visa available: The individual applying for the visa must be coming to the U.S. in one of 3 categories: 1. Principal Investor: The individual who is the principal investor and who will be directing and developing the enterprise or investment. 2. Manager: An individual who is coming to aide the Principal Investor or Investors in order to manage the operation. 3. Specialized knowledge: Someone who is coming for short period in order to aide the principal investor in the enterprise’s implantation in the U.S. and who has some specialized knowledge of operations overseas.

Family members of a an E visa holder are given an derivative visa based on their familial relationship with the treaty-trader or the investor. Recent changes in the law (as of January, 2002) now allow spouses of E visa holders to obtain work authorization without the need to obtain an independent visa. Thus, in stark contrast to prior law, spouses may now work in the U.S. as well. For children, the derivative status as an E- visa holder expires automatically at the age of 21 since at that point they are no longer considered “children” under the Immigration and Naturalization Act.

While consular officials have a large amount of discretion, E visa are usually approved for an initial period of 3 to 5 years. They are renewable indefinitely as long as the investment vehicle continues in operation and they are providing some sort of benefit to the U.S. Upon initial arrival in the U.S. the period of authorized stay given by the Immigration and Naturalization Service is 2 years, thus the individual may remain in the U.S. for up to 2 years at any one time, and may renew the visa by simply traveling to the Bahamas or other third country in order to do so.

P. Tristan Bourgoignie, Esq.
J.D. Cumberland School of Law of Samford University (1991); B.A. University of Miami (1987).  Board Certified in Immigration & Nationality Law by the Florida Bar;  Member, Certification Committee for Immigration & Nationality Law.

It is easier to resist at the beginning than at the end”. Leonardo Da Vinci

 

 

 

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