E visa category is created to give effect to those treaties between the United States and the foreign countries that provides reciprocal benefits to nationals of each country who invest in other country or who conduct trade between the two countries. INA section 101(a)(15)(E).
It is usually used for purposes of conducting trade between the United States and the country of majority ownership of the company or overseeing the investment in the United States. E visa can be used by many different types of companies; by its principals; and by its employees as long as they are performing activities that are approved by the applicable rules. However, E visa is available to only those individuals belong to the nation that has a “treaty of commerce and navigation” or a “bilateral investment treaty” with the United States.
Before an individual can apply for an E visa, the company in the United States where he or she will work must become E Visa Treaty qualified. To determine whether E visa category available for a particular company to be qualified, one must look a whether there is a treaty exist between the United States and alien country; Majority of ownership or control of the investing or trading company must be held by the nationals of the alien country; and each employee alien or principal alien of the company who seeks E status under the treaty must be the citizens of such alien country.
Once these factors are determined, the company in the US, shall make an initial request to qualify the U.S. company along with at least one individual's application at the U.S. Embassy or Consulate that has jurisdiction over the treaty country. Once the company is E visa qualified, any nationals of the treaty country who will work for the qualified U.S. entity may apply for E visas at the appropriate U.S. Embassy or Consulate.
Usually E visa is initially granted for the period of two years. However, this period can be extended almost indefinitely as long as the alien affirms that he or she will leave the United States when the period of authorized stay ends including unlimited extensions. Also, E visa aliens do not need to maintain a foreign residence during their US stays, as long as they affirm their intention to leave the United States when their period of stay including any extensions expires.
Family members of the E Visa Holder are entitled to enter the United States with the visa holder. Family members include spouse of the E visa holder and the unmarried minor children under the age of 21. Once a child attain the age of 21 or married before attaining the age of 21 is no longer eligible to remain in the United States in treaty status.
Only spouse of the E visa holder will be able to obtain employment authorization in the United States, and no other member in the family is entitled to obtain work authorization. The usual way to obtain E nonimmigrant status is to apply for visa at the consulate outside the United States, and then be admitted to the United States under E category although application for E nonimmigrant status may be filed with the USCIS if the alien is in the United States.
E visas are classified to three categories: First, E-1 Visa, meant for those individuals who come to the United States for purposes of conducting trade between the United States and the country of the majority of the ownership of the company. He must be coming to the United States to carry on substantial trade principally between the United States and the alien's country of nationality. For these purposes substantial trade is an amount of trade sufficient to ensure continuous flow of international trade items between the United States and the treaty country. Principal trade exists when over 50 percent of the E-1's total volume of international trade is conducted between United States and the treaty country.
Second, E-2 Visa is meant for those individuals who would like to oversee the investment in the United States. One on E-2 must demonstrate possession and control of funds and the ability to develop and direct the investment enterprise. Capital in the process of being invested or that has been invested must be placed at risk and irrevocably committed to the enterprise. The enterprise must be a real, active, and operating commercial or entrepreneurial undertaking, which produces services or goods for profit. The investment must be substantial and the enterprise must be more than marginal.
Third, E-3 Visa, is specially meant for the individuals from Australia to come to the United States and work for the employer as temporary worker with specialized knowledge in on specialty occupation as defined for H-1Bs and H-1B1s. Please note that E-3 has many features of E-1 and E-2 and incorporated some features of H-1B. It is implemented by the Congress to remove Australia from H-1B classification and to create separate numerical limitation. These E-3 visas are limited to 10, 500 in number visas that may be allotted to the Australian citizens to come to the United States, as E non-immigrants and work in a specialty occupation, for each year.
For E3 visa, employer is required to obtain Labor Condition Application (LCA) with the department of labor with all attestations that are required for H-1Bs, where filing LCAs with Department of Labor is not required for other E visa categories. The time limits that permit the alien to stay in this country that are of same of E-1 and E-2 visas as opposed to H-1Bs or between two and five years. However, they can be extended indefinitely.
USCIS’s role in adjudicating E-3 cases is limited to requests for either a change of nonimmigrant status to that of E-3 or a request for an extension of stay in that classification. Note that an alien who is in E-3 classification and seeks to change employers must file an application for an extension of stay or apply for an E-3 visa at a U.S. consulate abroad. Those applying for a change to or extension of E-3 nonimmigrant status will be eligible for Premium Processing once a notice has been published in the Federal Register that adds this category of nonimmigrant to those eligible for this service. Please note that although the E-3 classification involves specialty occupation employment, it is a separate classification from the H-1B classification and thus the additional fees described in sections 214(c)(9) and (11) of the INA do not apply to E-3 applicants. Note also that the dependent spouse and children of an E-3 principal may also derive E-3 nonimmigrant status, if otherwise eligible, irrespective of the spouse or children’s nationality. Further, an otherwise eligible dependent spouse of an E-3 principal nonimmigrant may apply for an Employment Authorization Document, irrespective of the dependent spouse’s nationality.
Following countries have treaties with the United States that allow qualifying nationals to apply for Treaty Trader status (E-1 and E-2) as of July 15, 2005: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Canada, Chile, China (Taiwan only), Colombia, Costa Rica, Croatia, Estonia, Ethiopia, Finland, France, Germany, Honduras, Iran, Italy Japan, Jordan, Korea (South), Latvia, Liberia, Luxemburg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, and Yugoslavia.
Countries that are conferring only E-1 Treaty trader exist only with Brunei, Denmark, Greece, and Israel. Countries that are conferring only E-2 Treaty Trader are following: Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo (Brazzaville), Congo (Kinshasa), Czech Republic, Ecuador, Egypt, Georgia, Grenada, Jamaica, Kazakhstan, Kyrgyzstan Lithuania, Moldova, Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovak Republic, Sri Lanka, Trinidad & Tobago, Tunisia, and Ukraine. Also, Please note that bilateral investment treaties conferring E-2 Status have been signed with the following countries but not yet entered into force: Belarus, El Salvador, Haiti, Mozambique, Nicaragua, Russia, and Uzbekistan.
Also, note that there are certain special conditions with regard to certain treaties with some countries.
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