The E Visa: An Alternative to H and L Visas

The 2008 H-1B cap was reached in record time, and many are anticipating the 2009 H-1B cap to be met just as quickly. While the L visa is a viable alternative to the H-1B, some individuals are unable to meet the requirements, particularly the condition that an employee have a previous employment history with the petitioning employer (at least one full year within the last three years). The E visa classification avoids the aforementioned problems by having no numerical limit and no previous employment requirement. In fact, E nonimmigrants may engage in self-employment, an attractive option for many E applicants. Other benefits of the E visa include the ability of holders to remain in the U.S. for an indefinite period of time without a requirement to maintain ties to a home country.

In order to obtain an E visa, an alien must be:

"entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign country of which he is a national, and the spouse and children of any such alien if accompanying or following to join him:

(i) solely to carry on substantial trade, principally between the United States
and the foreign state of which he is a national; or

(ii) has invested, or of an enterprise in which he is actively in the
process of investing, a substantial amount of capital . . ."

The list of qualifying countries for E-1 and E-2 visas can be found at: http://foia.state.gov/masterdocs/09fam/0941051X1.pdf. Remember: a treaty of Freedom, Commerce and Navigation must exist between the U.S. and the country of the applicant's nationality. If at least 50% of a business is owned by nationals of a relevant treaty country, and the application meets the other requirements (please see below), the company will be eligible for E status.

One of the stipulations for E classification is that the alien must intend to depart from the U.S. upon termination of his or her status. However, one of the benefits of the E visa is that there is no limit on the number of visa renewals, making the E visa an attractive alternative to the H, for which renewals are limited. However, the maximum validity period for an E visa depends on reciprocity with the alien's country of nationality. According to USCIS regulations, E nonimmigrants may be admitted to the U.S. for an initial period of not more than 2 years at a time. However, as long as an E visa holder continues to possess valid status, he or she may depart the U.S. and reenter and, at the border, obtain a new Form I-94 for an additional two years. Depending on the maximum validity period, the E visa holder can do this multiple times.

The E visa has two categories, which are explained in greater detail below: 1) E-1 for treaty traders and 2) E-2 for treaty investors.

E-1 Visa: Treaty Trader

An E-1 visa holder is a national of a country with which the U.S. maintains a qualifying treaty, who is coming to the U.S. to carry on substantial trade, including trade in services and technology, principally between the U.S. and the alien's country of nationality.

The term "trade" refers to the existing international exchange of items of trade for consideration between the U.S. and the treaty country. The trade must be traceable and identifiable. An E-1 visa applicant must prove the existence of such trade when applying, which can be shown through successfully-negotiated, binding contracts. The trade must be international (between the U.S. and the treaty country) and substantial (sufficient to ensure a continuous flow of trade items between the U.S. and the treaty country and occurring multiple times, regardless of the monetary value). Principal trade, for the purposes of the E-1, exists when over 50% of the E-1 company's total volume of international trade is conducted between the U.S. and the treaty country.

Items that qualify for trade include, but are not limited to, goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, data processing, accounting, advertising, engineering, and management consulting. The USCIS defines goods as "tangible commodities or merchandise having extrinsic value" and services as "legitimate economic activities, which provide other than tangible goods."

E-2 Visa: Treaty Investor

An E-2 visa holder is a national of a country with which the U.S. maintains a qualifying treaty, who is coming to the U.S. to develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital.

The term "investment" refers to the treaty investor's placement of capital at risk in the commercial sense with the objective of generating a profit. Requirements of an E-2 visa include:

•The treaty investor must be in possession of and have control over the capital invested or being invested.

•The treaty investor must possess the ability to develop and direct the business through at least 50% ownership of the business or by possessing a managerial position. If the business in question is a franchise, the franchisee must demonstrate sufficient control over the management of the business through the ability to hire and fire employees and set wages and business hours.

•The investment capital must be placed at risk, meaning that it is subject to partial or total loss.

•Capital that has been invested or that is in the process of being invested must be irrevocably committed to the enterprise; intent to invest or possession of uncommitted funds in a bank account is not sufficient for classification as a treaty investor.

•The enterprise must be a real, active, and operating commercial or entrepreneurial undertaking, producing services or goods for profit.

•The investment must be "substantial." However, there is no minimum dollar amount that is considered substantial-the investment amount depends on the type of business.

•The business enterprise must be more than "marginal." A "marginal enterprise" is one that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. If a business has a present or future capacity to make a significant economic contribution, it is not considered a marginal enterprise. The future projected capacity should be realizable within five years from the date the alien has started.

Employees of E Visa Holders

If an employee is coming to or is already in the U.S. to engage in duties of an executive or supervisory capacity, or, if employed is in a lesser capacity, the employee has special qualifications that make his or her services essential to the operation of the enterprise, he or she may be eligible for an E visa. The employee must have the same nationality as his or her employer and be within one of the following two categories:

• Executive or Supervisory Capacity: an employee in this capacity has ultimate control and responsibility for a significant proportion of the business's overall operation. An executive possesses authority to determine the policy of and direction for the business. A supervisory position allows the employee supervisory responsibility for a significant proportion of an enterprise's operations.

• Essential Skills: an employee in this capacity brings skills that are essential to the successful or efficient operation of the enterprise. The employee does not need to have any previous employment with the business, but in order to obtain this classification, factors such as the alien's proven expertise in the area of operations involved, the length of experience or training with the business, and the salary commanded are taken into consideration.

Dependents of E Visa Holders

The spouse and dependant children of an E visa holder need not be the same nationality as the principal E visa holder in order to obtain E classification. Dependents are permitted to obtain employment authorization (Form I-765) and attend school while in the U.S.

If you are looking for an alternative to the H or L visas, the E may be right for you. The attorneys at Harrison Alo are available to answer your questions and address your concerns about the E visa.