The E visa category is intended for business owners, managers, and employees who need to remain in the US for extended periods of time. Their stay is to oversee or work in an enterprise engaged in trade between the US and a foreign state that represents a major investment in the US.
The E visa category is available only if a “treaty of commerce and navigation” or a “bilateral investment treaty” providing for non immigrant entries exists between the US and the foreign state (except for Sweden and Australia, as they are covered even without a treaty).
The E visa category was actually designed to give effect to those treaties between the US and foreign countries that provide for reciprocal benefits to nationals of each country who invest in the other country or who conducts trade between the two countries. These treaties provide some special benefits that generally are not available to other, similar non immigrant categories:
The First Requirement
A Treaty of Commerce and Navigation or Bilateral Investment Treaty determines whether the E visa category can be used. The first step is to determine whether a treaty of commerce and navigation or bilateral investment treaty really exists between the US and the country of nationality of the foreign investor.
The Second Requirement
To qualify under one of the treaties, the company or individual engaging in trade or investment in the US must have the same nationality as the treaty country. There are two things to keep in mind with respect to this requirement:
- The “nationality” of the company engaging in trade or investment is the nationality of those persons who own at least 50% of the corporation’s stock. This rule encompasses 50-50 joint venture companies. Publicly held companies finding it difficult establishing their nationality through stock ownership records can presume to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. The principal place of business is not relevant while determining the nationality.
- The “nationality” of the person who owns the corporate stock is his/her country of citizenship. The nationality of each level of ownership has to be determined. For example, if the treaty enterprise is owned by many other corporations, the ownership of each and every corporation should also he determined. This process has to be adopted all the way back to the main owners, so as to determine their nationality. Foreign nationals who are also permanent residents of the US cannot he counted toward determining at least 50% ownership. Per law, foreign nationals have to be maintaining E non immigrant status if they are in the US.
The Third Requirement – Nationality of the Employee or Principal
It is also very important to determine the nationality of the employee or principal coming to the US. The rule is that the principal investor or trader and employees of the treaty enterprise should have the same nationality as the treaty enterprise. In simple terms, they have to qualify for treaty status under the same treaty as the treaty enterprise. So nationals of France (a treaty country) will not qualify for treaty status by working for a British company
Apart from the general requirements for the E visa category, the treaty trader subcategory has its own specific set of requirements.
The requirements for treaty-trader status include:
- Trade: The trading company must be engaged in “trade.”
- Substantial: The trade must be “substantial”, meaning that there are several transactions taking place during a certain period of time and the income derived should is enough to support the treaty trader.
- Principally with U.S: The trade must be “principally” between the US and the treaty country.
- Duties: The employee or principal must serve the company in a specified capacity that could either be managerial or that involves “essential skills.”