E-visas: The Workhorse in Visa Options
Your Investment in the US Can Translate into a Visa that Can Be Renewed Indefinitely
By: Olga Quinones, LL.M. Martensen Wright PC, and Anne Grethe Martensen, MBA, HA (Jur.) Martensen Wright Advokatfirma
With ever tightening requirements for Intra company visas such as the L-1 visa, and quickly exhausted quotas for H-1B visas, foreign companies are looking for alternative ways to facilitate the transfer of essential personnel to their enterprises in the US. E visas frequently offer the best option.
E visas allow foreign companies and entrepreneurs to come to the US to establish and develop their business and to bring their key employees to the US.
There are two types of E visas: The E-1 Treaty Trader Visa and E-2 Treaty Investor Visa. Both types of E visas are based on treaties of commerce and navigation between the US and foreign countries. Denmark, Norway and Sweden maintain the above treaties with the US, which allows citizens from these countries to apply for E-1 and E-2 visas.
Benefits of E visas:
- E visas allow individuals to come to the US to start a business;
- There is no time limit on the total duration of E visas. As long as all the requirements are satisfied, E visas can be extended indefinitely. However, it is important to note that the E visa itself does not lead to permanent resident status (a green card), irrespective of how long the person has lived and worked in the US;
- E visas allow for the transfer of essential employees to the US, including employees who have been employed with a foreign parent company for a short period of time (less than a year) or have not been employed with the foreign parent company at all prior to the transfer;
- It is possible for the spouse of the E visa employee to obtain authorization to work in the US.E visas are typically granted initially for 2 to 5 years (the length of time depends on each individual case). The basic requirements for both E visa types are the following: 1) The US Company (the Petitioner) must ultimately be at least 50% owned by the citizens of the same country as the visa applicant’s country of citizenship. It is important to note that ownership is traced to the ultimate individual owners of the business. Foreign citizens who are permanent residents of the US (green card holders) are not considered as qualifying owners for the purposes of E visa applications; 2) The person applying for an E visa (the Beneficiary) must be a citizen of the same country as the individuals who ultimately own at least 50% of the US Company; 3) The visa applicant must demonstrate an intent to leave the US after the termination of his or her E visa status. The last requirement applies at the time when the person is applying for a visa at the US Embassy. Note: this does not preclude an applicant from ultimately applying for permanent residency (green card) in the US if a separate basis for the green card application exists.
E-1 Treaty Trader Visa
The specific requirement for an E-1 (Treaty Trader) visa is that the petitioning company must demonstrate that it has established a “substantial trade” in goods or services between the country of the applicant’s nationality and the US. To be considered substantial, this trade must constitute at least 50% of the company’s total international trade. The trade requirement just mentioned may be fulfilled either by the foreign company or by the US subsidiary that is to hire the Beneficiary.
Notes regarding Qualifying Trade:
- Trade between the foreign country and the US must be in existence before the visa application can be submitted for processing. Trade is defined as the company’s international trade, including both the export and import of goods and/or services.
- If the company is trading goods, it is important to note that the goods must be manufactured in the applicant’s country of nationality (trade country), shipped to the US from the trade country and invoiced in the trade country to count as trade for E-1 visa purposes. Alternatively, the goods can be manufactured in the US, shipped from the US to the trade country and invoiced in the US.
- Substantial trade is determined by the number of the transactions over time, not only by the dollar amounts. For example, one transaction will not qualify as substantial trade, even if it is involves a large amount of money.
It is the authors’ experience that the Embassy requires substantial and detailed documentation in regards to the company’s international trade to satisfy the E-1 visa requirements. Such documents include, but are not limited to, bills of lading, invoices, bank account statements and other documentation showing transactions between the two countries.
E-2 Treaty Investor Visa
As the name suggests, an E-2 visa is based on investment. This type of visa requires a substantial investment to be made in the US Company by a foreign individual (often, but not always, the visa applicant) or a foreign company that has the same nationality as the visa applicant.
Notes regarding qualifying investment:
- The investment must be “substantial” and the funds have to be irrevocably committed. “Substantial” is not defined in the visa regulations. Typically, if the US Company is new, we see success with an initial investment of $80,000 – $100,000. The investment must be sufficient to ensure the successful operation of the US enterprise.
- The investment must be made into qualifying categories of expenses related to the US Company. Uncommitted funds in a bank account or mere ownership of undeveloped land are not considered an investment. Examples of expenses for E-2 visa purposes include US office infrastructure, inventory on hand, equipment, company cars, marketing expenses, recruiting expenses, and one-month’s office rent. Specific types of qualifying expenses often depend on the type of the business.
- The investment may not be marginal. The US business must demonstrate a realistic need and plan to hire US employees and a realistic potential for a financial return that significantly exceeds what is necessary to support a living for the visa applicant and his/her family.
- The investment must be at risk in a commercial sense. If the investment funds are not subject to partial or total loss if business fortunes reverse, then the investment does not qualify to support an E-2 visa application. Loans secured with the assets of the US enterprise do not qualify for an E-2 visa purposes.
Note regarding the visa applicant:
The investor must be coming to the US to develop and direct the US enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled or unskilled workers do not qualify for E-2 visas.
If you have questions or would like further information on E visas, please feel free to contact Martensen Wright PC at firstname.lastname@example.org. Our phone number is (916) 448 9088. You can also visit our website: http://www.martensenwright.com/