Insurance Tips

E-1 Visas Treaty Trader and E-2 Investor Visas

The Immigration and Nationality Act (INA) grants special status to citizens countries that have entered into treaties with the United States. E-1 trader and E-2 visas for investors offer benefits which are not available in many other categories nonimmigrant. For example, E visa holders may extend the duration of their visas almost indefinitely and not have to show ties to their country of origin, provided say they will leave the United States, where the duration of their authorized stay (including extensions) terminates. They can also participate in self-employment as entrepreneurs, is not allowed in the categories of nonimmigrant most others.

Visas Required for Canadians

While Canadians are exempt from visa for most categories, § 212.1 (l) of the immigration rules ("8 CFR") specifically requires that any alien seeking admission as a treaty trader or investor under the provisions of NAFTA must be in possession of a nonimmigrant visa issued by a U.S. consular officer classifying the alien under that section.

Only two consular offices in Canada visa process. As of January 3 2006, U.S. Consulate General in Vancouver where E processes visas for British Columbia and Yukon. The U.S. Consulate General in Toronto processes all cases Visa E, Ontario, Alberta, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Quebec and Saskatchewan.

If Canada is already in the United States under another category, it is also possible to request a change of status to E within the United States. However, if the Canadian leaves the United States and attempts to get back in, still need an E visa issued by a U.S. consulate. The automatic visa revalidation provision Available in 22 CFR 41 112 (d) a Canadian will not help in this case, since he or she will not have a visa to revalidate.

Consulates generally believe that they should allocate the E visa cases instead of USCIS (formerly INS) for reconsideration of the case before they decide to issue a visa. In most cases, Canadians seeking E classification is best applied in a U.S. consulate abroad, even if they are eligible for a change of status.

That said, could be appropriate to seek a change of status in cases where the alien must begin work in accordance with the state of E immediately and can not wait for an E visa case to be adjudicated abroad. In such cases, a change of situation could be useful as a short-term measure, while if the alien is pending at the consulate. In addition, in cases where the foreign E is too weak to be approved by the consulate of their country of origin or it may be appropriate to submit a change request of the situation and then seek a visa And later, once the business has grown.

Existence of Treaty

INA § 101 (a) (15) (E) requires the existence of a treaty of Friendship, Commerce and Navigation ("FCN") between the U.S. and other countries to the visa E classification to be granted to nationals of that country. Similarly, the term "treaty country" is defined in 22 CFR § 41.51 (a) (5) / 22 CFR § 41.51 (b) (5) as a foreign country with which there is a qualifying Treaty of Friendship, Commerce and Navigation or its equivalent in the United States. 22 CFR § 41.51 (a) (5) / 22 CFR § 41.51 (b) (5) also clarifies that a treaty country includes a foreign state to be accorded the privileges of the treaty visa under INA § 101 (a) (15) (E) by specific legislation (other than the INA). This essentially recognizes the eligibility of the existing E visa nationals of the Philippines, Canada and Mexico, which arises from the legislation.

A list of treaties or the equivalent in force between the United States and other countries, giving rise to eligibility E classification, published in Foreign Affairs Manual (FAM). This list is also reproduced here . The most recent additions to the list of eligible countries are Chile and Singapore. Some treaties allow both E-1 visa eligibility and E-2, while others only allow E-1-2 visa or E visas, but not both.

Country Required

To qualify for treaty trader or the status of investors, the applicant must possess the nationality of the treaty country. The authorities of the foreign state of which the alien is to determine the nationality of nationals of a sole trader or treaty investor.

The nationality of a business is determined by the citizenship of the individual owners business. A business that is at least fifty percent owned by nationals of the treaty in question is eligible for the status E. Therefore, where two foreign alike a business owner, which have different nationalities, the company has both nationalities.

Applicants who have dual nationality (Not a U.S. citizen) may qualify for category E, but should also assume as nationals of the treaty in question. Consequently, As an applicant must be documented and be admitted to the United States as a national of the treaty country of which accumulate treaty benefits. However, national of a treaty country who also have U.S. citizenship or legal U.S. permanent residence are not considered citizens of the country treated the purposes of eligibility E.

The country of incorporation is irrelevant to the nationality requirements for E visa purposes However, in cases in which a company sells exclusively on a stock exchange in the country of incorporation, the consular officer may presume that the nationality of the corporation is the location of exchange. However, when exchanging the stock of a corporation in more than one country, the presumption does not apply. In such cases, the applicant must determine the nationality by other means.

Canadian citizens are eligible for both E-1 and E 2-state as a result of the North American Free Trade Agreement with America. Canadian landed immigrants are not eligible for E visas unless their country of citizenship has come into its own treaty of commerce and navigation or bilateral investment treaty with the United States. In addition, U.S. Consulate General in Toronto will also hear an E visa application in accordance with a treaty other than the FTA where the applicant has been in the United States under an employment authorization for at least six months.

The intention of U.S. out of the termination of State

In accordance with 22 CFR § 41.51 (a) (1) (ii) / 22 CFR § 41.51 (b) (A) (iii), an E visa applicant must "intend to depart the U.S. upon termination of their state." However, the applicant is not to establish the intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant has no intention of abandoning. The applicant unequivocal expression of intent to return when the situation ends E is usually sufficient in the absence of evidence specific to the contrary.

A limited form of dual intent is recognized by E-immigrant. The Department of State (DOS) position is that a candidate who is a beneficiary of an immigrant petition may still be eligible for the state E, to show that she will not stay in the United States to adjust status to resident lawful permanent or otherwise remain in the United States, regardless of the legality of their status. The USCIS position is that an application for initial admission, change of status or extension of stay in E classification may not be denied solely on the basis of an application for approval of the labor certification permanent or filed or approved immigrant visa petition preference. In addition, applicants who already submitted an application for adjustment of status could request an extension of E status after that date.

Nevertheless, INA § 214 (b) still applies to nonimmigrants E. A lapsed before or violation of state, while in the United States often strongly infer that the applicant intends to depart the United States at the end of their situation and be very difficult to overcome such inference. The only way to overcome the presumption of immigrant intent in these situations is to establish (if possible) that rape or overstay was short and accidental.

The main foreign employees

General

A foreign employee of a treaty trader may be classified E-1 and an employee of a foreign investor treaty can be classified E-2, if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if used in a lesser capacity, the employee has qualifications special that make essential services to be provided for the proper functioning of the company. Employees treaty traders or treaty to obtain the status of investors E must also have the same nationality as their employer.

In order to support a treaty investor or trader filed application of the treaty on behalf of an employee of a foreign operator or treaty investor, the entrepreneur must be:

1. A person having the nationality of the treaty country, which is the maintenance of the status of E-1 or E-2, if the United States or if not in the United States would be classifiable as a treaty trader or investor treaty, or
2. An organization at least 50% owned by persons who are nationals of the treaty country who have treaty trader of non-immigrant or investor status if residing in the United States or do not reside in the United States would be classifiable as traders or treaty investors treaty.

In other words, when the employer is resident in the United States and those other title, treaty trader or treaty, is not possible to use treaty trader or an investor on behalf of employees. The same applies in the case of a corporate employer, where more than 50% of individuals who have an employer not resident in the United States to another title and that the E-1 or E-2.

Executive or supervisory character

Executive or supervisory functions grant control of employees and ultimately the responsibility for overall operation of the company or of a component very important. An executive position provides the employee great authority to determine policy and direction of the company. A grants the employee supervisory position supervisory responsibility for an important part of a company operations and does not usually include direct supervision of low-level workers.

To qualify as managerial or supervisory employee, executive or supervisory element of the activity of the post must be a principal and primary function of position and not a incidental or collateral function. For example, if the position requires skills or management primarily entails a fundamental responsibility to control for a large part of the company operations and only incidentally involves a routine of substantive, a general classification E is appropriate. On the contrary, if the position involves mostly routine work and secondly, leads to control low-level employees, the situation could be called executives or supervisors.

In determining whether the proposal is the executive or supervisory position, consular officers review the position title, their place in the organizational structure Company, the rights of the position, the extent to which the applicant will have ultimate control and responsibility for global operations of the company or of a component the same, the number and qualifications of the employees of the applicant monitor the level of pay, and whether the applicant possesses the executive or supervisory qualifying experience.

Essential Skills

The plaintiff has the burden of proof at the time of application not only the need for qualification special he or she offers, but also the amount of time that these powers are necessary. In general, the classification E is for specialists and not for regular skilled workers.

special qualifications and skills are those skills or that employee in a lesser capacity brings to a position or function, that are essential for the proper or efficient operation of the company. The essential nature of foreign skills to the company that employs is determined by assessing the degree with proven experience abroad in the area of the necessary operations, the uniqueness of the necessary skills or ability, length of experience and / or training with the company, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can orders.

If the special qualifications are essential will be assessed taking into account all the circumstances at the time of each visa application, on a case. In the evaluation of expertise and their essentiality, the consular officer must consider factors such as:

1. The degree of proven overseas experience in the area of specialization;
2. The uniqueness of specific skills;
3. The function of the job who goes abroad, and
4. The salary that such special expertise can command.

The availability of U.S. workers is another factor in assessing the degree of specialization has the applicant and the essentiality of the skilled worker for the proper functioning of the company. This consideration is not a test labor certification, but a measure of the degree of specialization of skills involved and the need for such skills. For example, a television technician who come to train U.S. workers in the new TV technology not generally available in the U.S. market would probably be eligible for a visa. If the question essential skills can not be resolved on the basis of initial documentation, the consular officer may ask the company to provide statements from sources such as cameras commerce, labor organizations, industry sources of trade, or state employment services on the unavailability of U.S. workers in the areas of skills in question.

There is no requirement that an "essential" employees have any previous employment with the company treaty. The only previous employment time is an element is needed only when the knowledge can be obtained for employment.

There are two types of workers in essential skills: (A) short-term essential skills workers, and (b) Workers with long-term essential skills. Each type is briefly discussed below.

Short Term Essential Skills

In the case of essential short-term workers, the employer may have the skills to a relatively short time when the effects of the admission of the employee refers to the start-up operations (for either business or new business activity) or for training and supervision of technicians employed in the manufacture, maintenance and repair. Usually skilled workers can qualify as essential employees but This almost always involves workers needed for implementation and training.

A new business or expand an established business in a new field in the United States United might need employees who are skilled workers for a short period of time. These employees receive the essential character of their familiarity with the operations abroad and the nature of their skills.

Employers in these cases, it is expected to train U.S. workers to replace those employees, usually within one or two years. Short-term essential skills workers, so in a less desirable as workers in the L-1B specialized knowledge, who are not required to demonstrate that U.S. workers will be trained to replace them.

Long-term essential skills

Long-term essentiality might be established in relation to ongoing activities in such areas as product improvement, quality control, or providing a service not generally available in the United States. If an applicant demonstrates that it has special qualifications and in the long term, these skills are essential for the proper functioning Company treaty, training of workers in the U.S. as replacement workers is not necessary. Therefore, it should be possible for this type employee to remain in the United States, either in the state E, for an indefinite period of time.

The previous decision on workers' skills long-term essential is matter of Walsh and Pollard, 20 December I. & N.. 60 (BIA 1988). Employees in this case were the automotive design engineers of Great Britain who came to the United States (pursuant to a contract between the treaty investor and General Motors) to redesign General Line Motors car in a smaller European. It was established that a worker with an engineering degree would still require about ten years training to become an automotive design engineer and that there was a sufficient number of U.S. automotive design engineers to meet the needs current automotive industry. The Board of Immigration Appeals ("BIA") concluded that employees were workers of essential skills long-term investor treaty was not expected to replace employees with U.S. workers in the future.

Industrial Disputes (Canadian and Mexican citizens only)

Because of the terms of NAFTA, the citizens of Canada or Mexico are not eligible the classification E, if the Attorney General and the Secretary of Labor has certified that:

1. There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment and
2. The alien has not established that the alien's entry will not affect adversely the settlement of the strike or lockout or the employment of any person involved in the strike or lockout.

E-1 Treaty Trader Visa – Specific Requirements

General

The Merchant E-1 visa is available to companies engaged trade with the United States. Treaty traders may enter the United States solely to carry on trade of some importance, which is international in scope, mainly between the U.S. and the treaty country. In the case of an E-2 employee of the company, the employee must be working in an executive, supervisory, or capacity essential skills.

Definition of "Trade"

The word "commerce" is defined in 22 CFR § 41.51 (a) (7) as the existing international exchange of trade items for consideration between the United States and the treaty country. existing trade includes successfully negotiated contracts binding upon the parties calling for the immediate exchange of trade goods. This exchange must be traceable and identifiable. Title commercial item must pass from one treaty party to the other. In accordance with 22 CFR § 41.51 (a) (8), the elements that qualify as trade items including but not limited to goods, services, technology, banking, insurance, transport, tourism, communications, and some news gathering services.

Trade must be in existence

the treaty country must show a continuous course of trade which should have already begun before the alien applying for status E.

Trade must be international

The above definition of "trade" requires an international exchange of trade items for consideration between the United States and the treaty country. Market Development without international exchange domestic trade is not the E-1 context. Therefore, participation in purely domestic trade is not covered in this classification. The exchange traceability of goods or services must be between the U.S. and other treaty country.

Trade must be substantial

In accordance with 22 CFR § 41.51 (a) (9), "substantial trade" means the amount of trade sufficient to ensure a continuous flow of trade goods between the U.S. and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of monetary value. Although the monetary value of the trade issue is important, more weight is given to more numerous exchanges of larger value.

Large corporations involved in trade international high monetary value would have no problem establishing that the trade was substantial, if engaged in more than one transaction. In the case of small businesses, trade continue to be regarded as substantial if revenues from international trade is sufficient to support the treaty trader and his family.

Trade must be principally between the United States and countries of the Treaty

The term "trade principal "is defined in the sense that at least 50% of the total volume of business is international trade between the U.S. and the country the treaty. Consequently, U.S. domestic trade not considered in calculating the percentage of equity trading.

To measure trade in a necessary requirement think of the trade conducted by the legal entity is trying to eligibility that the employer treaty. As a subsidiary is a separate legal entity from its father, a U.S. affiliate could qualify as a treaty trader, though its foreign parent company is engaged in any trade between the United States and the country the treaty. However, the U.S. branch of a foreign parent company would not be considered as a separate legal entity.

E-2 Investor Visa Treaty – Specific Requirements

General

The E-2 is available to nationals treaty that are participating in investment in the United States. The investor must demonstrate that she has invested or is actively in the process of investing an amount substantial interest in a real trading company operating with the exception of a single marginal living for the investor and their dependents. He or she also should be able to "develop and direct" the enterprise.

The investment must be at risk

The concept investment connotes the placing of funds or other assets of venture capital in the commercial sense, with the hope of generating a change. If funds are not subject to partiality or total loss if business fortunes reverse, then it is an investment. Therefore, funds must be committed and personally at risk in order to qualify and activity must be an active and substantial investment.

Debt secured by the assets of the company is not considered an investment rating. This is true even when personal property, in addition to the assets of the insurance business indebtedness. However, unsecured loans or secured loans only own personal assets by foreign investment are considered qualifying.

Investment must be irrevocably committed

The capital investment is "in process of being reversed" must be irrevocably committed to the company. However, it is possible to use several legal mechanisms, such as holding funds in trust, to establish the necessary commitment of funds. For the foreigner to be "in the investment process," abroad must be near the beginning of real commercial transactions, not only at the stage of signing contracts (which can be divided) or exploration of suitable sites and property.

A mere intent to invest, or possession of uncommitted funds in a bank account or investment agreements that involve future no current commitment will not suffice. However, a reasonable amount of cash held in a bank account or a similar business background to use in routine business operations, can be counted as part of investment funds.

Other Assets as part of the investment

Payments in the form of leases or rentals of property or equipment can figure investment in a limited amount of funds devoted to this subject in one month, since the rest of the payments is expected to be paid out of income of the business of treaties. However, more than a month of payments may be counted if made in advance.

The amount allocated for the purchase of equipment and inventory already in the possession of the applicant can be considered as part of investment object. The value of the goods or equipment transferred to the United States can be considered as part of the investments, if it can be shown that the products and machinery put to use in an ongoing commercial enterprise.

Business and Commercial Real

The company must be a real and active commercial or business enterprise, producing some service or commodity. A front company, passive investment, or unencumbered funds do not qualify as not requiring intend to manage or develop a commercial enterprise. However, a real estate asset development company would be qualifying.

The investment must be substantial

Under INA § 101 (a) (45), the term "substantial" means "so much trade or capital as is established by the Secretary of State, after consultation with relevant agencies of government. "DOS position remains that there is no amount at least that is considered "substantial" for the purposes of E-2 eligibility. The FAM states that, provided all other requirements of state E-2 met the cost the company itself is not independently relevant or determining qualification for the E-2. While a manufacturing business can easily cost million dollars, the cost of buying or setting up a consulting firm may be relatively low.

A definition of the term "amount substantial capital "in the context of an E-2 investment is now defined in 22 CFR § 41.51 (b) (9) as an amount that is:

1. Substantial relation to the total cost of purchase is an established company or create the kind of construction company;
2. Sufficient to ensure the investor's financial commitment treaty on the functioning of the company, and
3. A magnitude to support the likelihood that the investor treated successfully develop and manage the company.

For the most part, this definition reiterates the proportionality test "described in the FAM. For an investment to be important, it should be proportional to the total value of the company. The definition also requires sufficient investment to support the likelihood that the business will succeed.

The FAM states that the requirement of substantiality is met by satisfying the proportionality test. " We define the proportionality test as a comparison between two figures:

1. The amount of funds invested, and
2. The cost of an established business or, if a new company, the cost of establish a business.

The cost of an established business is generally the purchase price, which is usually considered to be the fair market value. The cost a newly created company is the actual cost it takes to establish a business to the point to be operational.

Neither the above definition, or describe FAM minimum investment required for the E-2 eligibility. The FAM used to include several examples of acceptable proportionality at different levels of investment. However, These examples have been removed from the FAM and consular officers used as too many bright line tests.

In practice, the amount of investment is still considered unofficial. In the past, the U.S. Consulate General in Toronto are readily accepted $ 50,000.00 USD investment. This is perhaps because FAM previously referred to an investment of $ 50,000.00 USD (requires an investment rate of about 90-100% of the total value of the business) as an example substantial investment. However, the consulates of other countries often require a higher investment amount.

The investment should not be marginal

An alien should not be investing in a marginal enterprise solely for the purpose of earning a living. A marginal enterprise is an enterprise that has no capacity present or future to generate more than enough income to allow a minimum life for the treaty investor and his family.

At one point, the consular officials were allowed to take into account other sources of income to determine if the company treaty was marginal. Unfortunately, 22 CFR 41.51 (b) (10) now precludes states that the business is not marginal, providing evidence of other sources of income or financial resources.

22 CFR 41.51 (b) (10) also provides that a company has no such ability to generate revenue, but is a present or future ability to make a significant economic contribution is not a company marginal. However, the projected future capacity in general, should be achievable within five years from the date of the start of the normal activities of foreign enterprise.

Ability to develop and direct the enterprise

A treaty investor (E-2 but not employees) should be looking entry only to develop and direct the activity treaty. The ability to develop and conduct can be established by having at least 50% of the business under treaty (if the owner retains full control rights over that part of the company and assigned them to another), by possessing operational control through a managerial position or other device to other companies or by other means. Factors considered include ownership, control of the shares by proxy, the management of the position and authority etc.

Length of Stay and Extensions

E visas are generally valid for a period of five years or less. The maximum permitted duration of visa will depend on the nationality of the foreigner. The maximum time allowed for each nationality can be determined by reference to lists of reciprocity contained in the FAM. For example, the maximum duration of a treaty trader or investor visa for citizens of Canada is 60 months or five years. It is important to remember that a consular officer may choose to grant a visa E for a shorter time period.

Although E visas may be valid for up to five years, pursuant to 8 CFR § 214.2 (e) (1), traders and investors can not be admitted for an initial period of more than two years and shall not be granted extensions of stay in increments over two years. Therefore, an alien treaty trader or investor status with a visa five years will be admitted initially for only two years. He or she may request an extension of stay of two years or just leave the States U.S. and apply for readmission to the visa valid for a further period of two years.

There is no limit on the number of extensions allowed under this category.

Spouse and minor children

The spouse and minor children of a trader or investor treaty are entitled to the same classification as the director of foreign nationality of the spouse or child is irrelevant. And they can stay in the U.S. by duration of stay abroad director.

Until recently, they could attend school but could not find a job. However, on 16 January 2002 President Bush signed HR 2277 (PL 107-124) to the legislation. This law now allows spouses of traders and investors to obtain an employment authorization. This law is effective as of the date of enactment. In a memorandum to the field dated February 22, 2002, the INS, said that the spouse must obtain a permit Jobs ("EAD") by filing Form I-765 with the payment and evidence of its relationship with the foreign director before being permitted to work.

About the Author

Henry J. Chang obtained his law degree from Osgoode Hall Law School in 1990. He is a member of both The State Bar of California and The Law Society of Upper Canada (”LSUC”). Mr. Chang is also licensed as a Foreign Legal Consultant by the Law Society of Upper Canada, which is a requirement for all Ontario lawyers who provide advice on the law of a foreign jurisdiction.

A recognized authority in the field of United States and Canadian immigration law, Mr. Chang lectures extensively on the subject in both the United States and Canada. His articles have appeared in numerous nationally- and internationally-recognized publications. A partial list of recent publications and speaking engagements appears below. Mr. Chang also mentors other lawyers in the practice of immigration law in the United States and Canada.