Immigration Procedures Handbook - Chapter 4 - E Visa Category

Research References, Immigr. Proc. Handbook Ch. 4 Refs.

Immigr. Proc. Handbook Ch. 4 Refs. Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category Research References

Treatises and Practice Aids Fragomen, Del Rey, and Bernsen, Immigration Law and Business 2:74 to 2:76 Gallagher, Immigration Law Service 2d, 4:154 to 4:198 Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.

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Immigr. Proc. Handbook Ch. 4 Introduction Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category References

Introduction Note the following developments since publication of the Supplement to the 20102011 Edition of the Immigration Procedures Handbook with regard to the E nonimmigrant category: Form DS-156E revised, use clarified. Form DS-156E, the Nonimmigrant Treaty Trader/Investor Application, was recently revised. The latest version of the form is dated 06-2011. The form is marked as rendering prior editions obsolete. The form is illustrated below as Sample Form 4-1. Analysis of the form follows the illustration. Also, the use of the form has been clarified. The form is required only if the applicant is applying for an E-1 treaty trader visa or an E-2 visa as an executive, manager, or essential employee. The form is not required if the applicant is applying for an E-2 visa as a principal treaty investor. In the latter cases, the DS-160 form solicits the relevant information to determine eligibility for an E-2 principal investor visa. I-129 filing tips. In a recent teleconference with stakeholders, USCIS officials provided guidance and clarification on completing certain aspects of the latest edition of Form I-129. The officials also provided some tips on filing the I-129. See 4:34 and 4:25, below. I-129 signature policy still not revised. USCIS has indicated that it expects to issue guidance that would prohibit immigration filings that are signed by outside counsel under a power of attorney, except in very limited circumstances outside the scope of business immigration. Currently, employers may authorize their outside immigration attorneys to sign applications and petitions on their behalf pursuant to a power of attorney. A revised policy has not been implemented as of October 15, 2011. Employers that use powers of attorney, however, may wish to discontinue this practice immediately out of an abundance of caution. State Department revises online nonimmigrant visa application. The State Department has introduced a revised edition of Form DS-160 which includes some enhanced technical features intended make the application more secure and easier to fill out, but also includes a strict new rule about who may electronically sign the application. Among other changes, the new Form DS-160 contains more options to save an incomplete form, which should make it easier for visa applicants to fill out the lengthy application. If the forms new features work as anticipated, applicants for nonimmigrant visas could find it easier to fill out and submit the new application and may see some relief from the slowdowns and technical problems that many experienced when using the previous version of the form. The agency emphasizes, however, that applicants must electronically sign and submit the application themselves. Visa applications cannot be signed by an applicants attorney or representative, except in special circumstances such as the applicants disability. The strict signature policy could cause some delays for those using an attorney or representative to help them complete the form. USCIS implements Secure Mail Initiative for EADs, Ombudsman recommendations to address interim EAD problems. In May 2011, USCIS announced that it had fully implemented its Secure Mail Initiative (SMI), which uses U.S. Postal Service Priority Mail with Delivery Confirmation to deliver certain immigration documents. Employment authorization documents issued to E family members will be returned using SMI. In addition, in a recent report, the USCIS Ombudsman found that USCIS is still taking more than 90 days to process EAD applications in many cases and problems in obtaining an interim EAD in these circumstances persist despite efforts undertaken in recent years to address these problems. In light of these findings, the USCIS Ombudsmans Office has recommended that USCIS improve EAD processing by re-establishing local authority to adjudicate EAD requests and by establishing uniform processing time goal of 60 days for issuance of the EAD. These proposals have not be implemented as of October 15, 2011. Responding to I-129 requests for evidence. Under the latest policy guidelines on RFE timeframes issued in July 2011, RFEs for most forms, including I-129 forms, will have a standard response time of 84 days. In addition, if an RFE is served by

Introduction, Immigr. Proc. Handbook Ch. 4 Introduction

mail, the applicant will have an extra three days to respond. The revised instructions were issued to provide greater consistency in the issuance of RFEs. Note that adjudications officers retain some discretion to reduce response times in specific cases where warranted by the circumstances, but must get supervisor approval in order to do so. As a result, when responding to an RFE, attorneys should follow the actual response time frame set forth in the RFE. DHS ends special registration program. In April 2011, however, DHS announced that it will no longer register foreign nationals in NSEERS, the special registration program which obligated foreign nationals from numerous countries of concern to comply with special screening, reporting, and departure requirements. DHS has determined that other existing security programsincluding the US-VISIT entry-exit systemachieve the same results. The suspension of special registration is welcome news for travelers from the designated countries of concern and for their employers. Individuals who were subject to NSEERS faced lengthy inspections at U.S. ports of entry and had less flexibility when departing the United States. Note, however, that questions about past compliance with NSEERS could still arise. More detailed information regarding the impact of this development is included in Ch. 11, below. Global Entry program opens at Canadian pre-clearance airports. Global Entry kiosks have recently opened at Vancouver International Airport and Ottawas MacDonald-Cartier Airport, and are expected to be available by September at Pearson International Airport in Toronto and Trudeau International Airport in Montreal. This means that Global Entry participants and Canadian participants in NEXUS can use these kiosks to expedite their entry into the U.S. See Ch. 11, below. Form I-539 revised. Form I-539, the application to change/extend nonimmigrant status was recently revised. The latest version of Form I-539 is dated 01/19/11. Earlier versions of the form, dated 06/12/09 or later, remain acceptable until further notice. A completed Form I-539 for family members of the E extension applicant is illustrated as Sample Form 4-5, below. Analysis of that form follows the illustration. The annotation covers all uses of the form by family members of principal E, H, L, O, P, and TN nonimmigrants. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


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Immigr. Proc. Handbook 4:1 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category I. Basic Information About the E Category References 4:1. Coverage of the E category

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The E category is especially useful for business owners, managers, and employees who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the United States and a foreign state or that represents a major investment in the United States. 101(a)(15)(E) of the Immigration and Nationality Act; 8 U.S.C.A. 1101(a)(15)(E). The E nonimmigrant category is available, however, only if a treaty of commerce and navigation or a bilateral investment treaty providing for nonimmigrant entries is in existence between the United States and the foreign state (except in the case of Sweden and Australia, which are covered even without a treaty). The E visa category was established to give effect to those treaties between the United States and foreign countries that provide for reciprocal benefits to nationals of each country who invest in the other country or who conduct trade between the two countries. These treaties provide some special benefits not available to other, similar nonimmigrant categories. Keep in mind these points when considering use of the E visa category: the E visa category can be used for purposes of conducting trade between the United States and the country of majority ownership of the company (E-1), or overseeing investment in the United States (E-2) the E visa category can be used by many different types of companies, from one owned by a single investor to a large multinational corporation the E visa category can be used by the companys principals or by its employees, as long as they are performing functions approved by the applicable rules, discussed below

Note: Legislation enacted in May 2005 created the E-3 visa category for Australian professionals performing services in a specialty occupation. Up to 10,500 E-3 visas are available each fiscal year. Spouses and children accompanying or joining the principal E-3 applicant are not subject to the numerical limitation and need not be Australian nationals. Australian nationals who are outside the United States apply for E-3 classification directly with a U.S. embassy or consulate on Form DS-156, the Nonimmigrant Visa Application. Australian nationals who are in the United States and are seeking an extension of E-3 status or a change to E-3 status must apply for USCIS approval. All applications for E-3 status must be accompanied by a Labor Condition Application (LCA) from the Department of Labor (DOL). The requirements and procedures applicable to the new E-3 category are similar to the requirements for H-1B1 classification (for Free Trade professionals from Chile and Singapore) and are discussed in detail in Chapter 5 of the H-1B Handbook.

4:1. Coverage of the E category, Immigr. Proc. Handbook 4:1

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Immigr. Proc. Handbook 4:2 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category I. Basic Information About the E Category References

4:2. Duration of stay

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Although an initial period of stay of two years is granted to persons coming to the United States in the E category, this period can be extended almost indefinitelyas long as the alien affirms that he or she will leave the United States when the period of authorized stay, including unlimited extensions, ends. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:3. Application process, Immigr. Proc. Handbook 4:3


4:3. Application process

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 It is possible to make the application for this status exclusively through a U.S. consulate abroad. A preliminary petition on Form I-129 does not need to be approved by USCIS. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


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4:4. Special conditions

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 E-category aliens do not need to maintain a foreign residence during their U.S. stays, as long as they affirm their intention to leave the United States when their period of stay (plus any authorized extensions) expires. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:5. Alternatives to the E category, Immigr. Proc. Handbook 4:5


4:5. Alternatives to the E category

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 If a company or individual investor or trader does not qualify for treaty consideration, other alternatives are likely to be open in seeking entry to the United States, either to establish a new company or to service an established one. Probably the most useful category for a company engaged in trade with or an investment in the United States, but which cannot qualify under a treaty, is the L-1 visa category for intracompany transferees. This category is useful even for small investors seeking to set up a company in the United States. See Ch 5. An investor or trader may also use the B-1 visa category for business visitors to come to the United States for relatively short periods of time to set up and staff an investment or trading company. These persons, however, may not be paid by the U.S. enterprise. See the discussion in Ch 1. Large companies with established subsidiaries or affiliates in this country can also make use of the L-1 and B-1 categories, and can also bring to the United States skilled professionals, including some business executives, in the H-1B visa category for temporary workers in specialty occupations. The H-1B category is discussed in the H-1B Handbook. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


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4:6. Family members of the E visa holder

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Family members of the E visa holder are entitled to enter the United States with the visa holder. Included in this category is the spouse of the visa holder, as well as minor unmarried children under the age of 21. Once children attain the age of 21 or get married, they are no longer eligible to remain in the United States in treaty status. Spousal employment authorization. Legislation enacted in 2002 provides work authorization for spouses of E-1 and E-2 nonimmigrants (treaty traders/investors). In the past, there was no mechanism for spouses of E-1 and E-2 nonimmigrants to work, although the government generally did not attempt to remove E spouses who were employed. Still, such individuals would not normally be able to change or adjust status because technically employment was a violation of status. Additionally, employers who employed E spouses without authorization could be subject to employer sanctions. The 2002 law covers only spouses of E principal nonimmigrants. Other family members cannot obtain work authorization. USCIS guidelines provide that spouses seeking employment authorization must apply for an employment authorization document (EAD) on I-765. The spouse cannot begin employment until the EAD is received. The form should be submitted to USCIS service center that has jurisdiction over the dependent spouses place of residence (unless the application is filed concurrently with an extension of stay or change of status application as discussed below). In completing the form, applicants write or type spouse of E nonimmigrant and insert (a)(17) as the regulatory cite required in Item 16 of the form. The latest version of the form is illustrated in Ch 2 (as Sample Form 2-5). A line-by-line analysis of the form follows the illustration. USCIS instructions state that in order to establish a valid marital relationship and verify current status of the principal E-1 or E-2 nonimmigrant and his or her dependent spouse, the I-94 cards of both the principal nonimmigrant and the spouse should be provided. Applicants should also submit a copy of the petition approval notice of the E-1 or E-2 principal to assist in verifying status (if a petition was previously filed with USCIS). Finally, EAD applicants must submit: (1) two full-face, passport-style photographs (the standards for which are described in detail in 20:20, below, in conjunction with adjustment applications), (2) the filing fee of $380 in a check or money order made out to the Department of Homeland Security, (3) a copy of any prior EAD issued to the applicant or, if no prior EAD issued, copy of government issued identity document (e.g., foreign passport or national identity document), and (4) Form G-1145 if the form will be filed at a USCIS lockbox facility and the applicant is requesting electronic notification of application acceptance. When the I-765 form is being submitted by an E-2 spouse and the form is filed alone (i.e., the form is not being filed concurrently with Form I-539), the form must be filed with a lockbox facility in Phoenix or Dallas (depending on the applicants location). If the I-765 form is filed concurrently with an extension of stay or change of status application (on Form I-539), the forms should be submitted according to the filing instructions for the I-539 form (i.e., the form must be filed

4:6. Family members of the E visa holder, Immigr. Proc. Handbook 4:6

with the California Service Center if the I-539 form is filed concurrently with the principals I-129 form). The filing instructions for the I-539 are set forth in 4:29 and 4:40, below. As an alternative to filing by mail, applicants are able to electronically complete and submit Form I-765 and the related filing fee through links on the USCIS homepage. Information regarding the e-filing program is provided in Ch. 23, below. E-filings are generally discouraged, however, if supporting paper documentation is required to be submitted separately as part of the e-filing process. The EAD will be sent to the student directly from the Service Center. The EAD will be returned using U.S. Postal Service Priority Mail with Delivery Confirmation. Once an approval notice is received, attorneys can contact USCISs National Customer Service Center to request the USPS tracking information for the related document which may be used at any time to obtain delivery status information at www.usps.com. Employment authorization, once received, is valid for employment with any employer, but limited to the period stated on the EAD. Dependent spouses of E nonimmigrants will be authorized to accept employment for the period of admission and/or status of their spouses not to exceed two years. USCIS may take up to 90 days to adjudicate the I-765 application. If the application is not adjudicated within 90 days of receipt, the alien can receive interim employment authorization for a 240-day period or until the application is adjudicated. The alien should go to the USCIS office with proof of identity and all communications from the service center (including the filing receipt on Form I-797C). Upon receipt of a Form I-765 requesting an interim EAD, local field offices are required to perform the following tasks: claims verification; contact the Service Center to initiate EAD production (for either interim or non-interim EADs); and provide a notice to applicant acknowledging status inquiry. NOTE: In practice, USCIS often takes more than 90 days to process the EAD application in recent years and there have also been reports of problems in obtaining an interim EAD in these circumstances. The agency has acknowledged these problems, and instituted measures to reduce delays including routine system sweeps to find cases pending for 60 days that were not yet assigned to an Immigration Services Officer, acceptance of service requests via the National Customer Service Center at day 75, and the adjudication, within 10 days, of expedite requests for cases pending past 90 days. To address these problems, the USCIS Ombudsmans Office has recommended that USCIS improve EAD processing by re-establishing local authority to adjudicate EAD requests and by establishing uniform processing time goal of 60 days for issuance of the EAD. These proposals have not be implemented as of September 8, 2011. There is no provision for back-dating a new EAD to the expiration date of a prior EAD. As a result, nonimmigrants must ensure that they apply for replacement EADs sufficiently in advance of the expiration date contained in any current EAD to avoid a lapse in employment authorization. An application to renew an EAD may be filed up to 120 days prior to the expiration of the original EAD. Any I-765 application for a renewal EAD that is filed earlier than 120 days before the date of expiration will be denied based on a filing date that was too early. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


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Immigr. Proc. Handbook 4:7 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:7. Generally

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Three elements must be present for the E visa category to be available: (1) a treaty must exist between the United States and Country X; (2) majority ownership or control of the investing or trading company must be held by nationals of Country X; (3) Country X citizenship must be held by each employee or principal of the company who seeks E status under the treaty. If any of these three elements is missing, the E visa category cannot be used. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:8. The first requirement: a treaty of commerce and..., Immigr. Proc....

Immigr. Proc. Handbook 4:8 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:8. The first requirement: a treaty of commerce and navigation or bilateral investment treaty

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 To determine whether the E category can be used, the first step is to determine whether a treaty of commerce and navigation or bilateral investment treaty exists between the United States and the country of nationality of the foreign company or investor. See 4:8 for the rules to determine a companys nationality. (a). Treaty countries (as of September 15, 2010) Treaties or equivalent arrangements providing for trade and investment (E-1 and E-2) status are in effect with the following countries: Argentina Ireland Singapore Australia Italy Slovenia Austria Belgium Bolivia Bosnia and Herzegovina Canada Chile China (Taiwan only) Colombia Costa Rica Croatia Denmark Estonia Japan Jordan Korea (South) Kosovo Latvia Liberia Luxembourg Macedonia Mexico Montenegro Netherlands Norway 2012 Thomson Reuters. No claim to original U.S. Government Works. 13 Spain Suriname Sweden Switzerland Thailand Togo Turkey United Kingdom

Ethiopia Finland France Germany Honduras Iran

Oman Pakistan Paraguay Philippines Poland Serbia

Treaties conferring only E-1 treaty-trader status exist with the following countries: Brunei Greece Israel Treaties conferring only E-2 treaty-investor status exist with the following countries: Albania Ecuador Morocco Armenia Azerbaijan Bahrain Bangladesh Bulgaria Cameroon Congo (Brazzaville) Congo (Kinshasa) Czech Republic Egypt Georgia Grenada Jamaica Kazakhstan Kyrgyzstan Lithuania Moldova Mongolia Panama Romania Senegal Slovakia Sri Lanka Trinidad & Tobago Tunisia Ukraine

Note that bilateral investment treaties conferring E-2 status have been signed with the following countries but have not yet entered into force: Belarus, El Salvador, Haiti, Mozambique, Nicaragua, Russia, and Uzbekistan. The State Department will announce when any of these treaties go into effect. Note the following special conditions with regard to certain treaties: (1) Iran: Still in effect despite lack of diplomatic relations; only single-entry visas can be issued for Iranian nationals. Under an executive order effective June 6, 1995, trade in goods or services is prohibited with Iran. Since trade with the treaty country is an essential element of E-1 status, such status is barred under the executive order. E-2 status is still possible if it can be demonstrated that there is no financial connection between the investment enterprise and Iran. (2) United Kingdom: Only for British nationals normally resident in the UK; no landed immigrants (permanent residents) of Canada, Hong Kong, or other countries. Also, individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under UK treaty. (3) China: Taiwan only. (4) Vietnam: A treaty at one time existed with South Vietnam; that treaty is no longer in effect. (5) Australia and Sweden: The 1990 Act required that nationals of these countries be treated as though a treaty exists for E1 and E-2 purposes. Therefore, although there is not an actual treaty with these countries, they are listed above with other countries for which a treaty exists. (6) Yugoslavia: The State Department view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY - Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Montenegro, Serbia, and Slovenia continue to be bound by the treaty in force with the SFRY and the time of dissolution. (7) Eritrea: The State Department has not yet indicated whether Eritrea will be considered a successor to the treaty with Ethiopia. (8) Denmark: The E-1 treaty does not apply to Greenland. (9) France: The Treaty also applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion. (10) Japan: The Treaty also applies to the Bonin Islands and to the Ryukyu Islands.

4:8. The first requirement: a treaty of commerce and..., Immigr. Proc....

(11) Netherlands: The Treaty is also applicable to Aruba and Netherlands Antilles. (12) Norway: The Treaty does not apply to Svalbard (Spitzbergen and certain lesser islands). (13) Spain: The Treaty is also applicable to all territories. Typically, about one-half of the treaty aliens issued E visas are from Japan. Another 20% come from the United Kingdom, Germany, and France. The next biggest users of the E category are from Korea, Taiwan, Israel, Canada, and Italy. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


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Immigr. Proc. Handbook 4:9 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:9. The second requirement: qualifying under the treaty (treaty companys ownership)

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 In order to qualify under one of the treaties, the company or individual engaging in trade or investment in the U.S. must have the same nationality as the treaty country. There are two points to remember 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 stock of the corporation. This rule encompasses 50-50 joint-venture companies. For large, publicly held companies that may have a difficult time establishing their nationality through stock ownership records, the firm can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. The place of incorporation or principal place of business is not relevant to determining nationality. The nationality of the persons owning the corporate stock is their country of citizenship. The nationality of each level of ownership must be determined. For example, if the treaty enterprise is owned by several other corporations, the ownership of each corporation must also be determined; this process must be followed all the way back to the ultimate owners, so that their nationality can be determined. Foreign nationals who are also U.S. permanent residents cannot be counted toward determining at least 50% ownership. The rule is that foreign nationals must be maintaining E nonimmigrant status if they are in the United States. (a). Examples of determining the nationality of a company for treaty purposes Note the following examples: Ten shareholders each own 10% of the stock in a trading company. Five of them are Belgian nationals, the others are nationals of other countries. The company qualifies under the treaty with Belgium, because 50% of the shareholders are nationals of the treaty country. The trading enterprise seeking status under the treaty is wholly-owned by a parent company incorporated in Japan. The parent company is publicly held, with tens of thousands of shareholders, and its shares are listed on the Tokyo stock exchange. The nationality of the parent company is Japanese, based on its stock listing (its place of incorporation is not relevant); the nationality of the trading enterprise is also Japanese, because its sole owner is Japanese. The example illustrates the need to go back through each layer of ownership to the ultimate owners. Three French nationals are equal owners of a company making investments in the United States. Two of the French nationals are U.S. permanent residents. In this situation, the investing company is not majority-owned by qualified nationals of a treaty country, and the company does not have French nationality. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

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Immigr. Proc. Handbook 4:10 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References

4:10. The third requirement: nationality of the employee or principal

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Determining the nationality of the employee or principal coming to the U.S. is also crucial in qualifying for E visa status. The rule is that the principal investor or trader (the primary treaty alien) and employees of the treaty enterprise (the employee treaty aliens) must have the same nationality as the treaty enterprise. That is, they must qualify for treaty status under the same treaty as the treaty enterprise. Therefore, a national of France (a treaty country) cannot qualify for treaty status by working for a British company (also a treaty country).

Note: Although the primary treaty alien and employee treaty aliens must be nationals of the treaty country through which the company qualifies, the spouse or children of the alien can be any nationality. As long as the qualifying alien is eligible for treaty status, the spouse and children are automatically accorded status under the same treaty, regardless of their nationality. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:11. Special requirements for traders, Immigr. Proc. Handbook 4:11

Immigr. Proc. Handbook 4:11 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:11. Special requirements for traders

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 In addition to the general requirements for the E visa category, the treaty-trader subcategory has its own specific set of criteria. See also Immigration Law and Business 2:74. The requirements for treaty-trader status include: trade The trading company must be engaged in trade. substantial The trade must be substantial. principally with U.S. The trade must be principally between the U.S. and the treaty country. duties The employee or principal must serve the company in a specified capacity: either managerial or involving essential skills. (a). What constitutes trade? Prior to 1989, the concept of trade was limited to the exchange of tangible goods for money or other tangible goods. Rule changes that year, endorsed by the 1990 Act, have broadened that concept considerably. Under the new definition, trade can involve the exchange, purchase, or sale of goods or services. Services include economic activities with an output that does not encompass a tangible good. Among the businesses that could be included as enterprises trading in services are data processing, advertising, accounting, design and engineering, management consulting, and law firms. Businesses participating in a technology transfer are also engaged in trade for E-1 purposes, as long as title to the trade item passes from one entity to the other. Further changes to the definition in September 1997 clarify that trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. This change effectively permits the conferral of E-1 benefits before the trading company is in operation. In practice, application of this broader concept to business enterprises trading services could be difficult. Consider the following points: (1) Showing an exchange of services and/or money between the United States and the treaty country might depend on 2012 Thomson Reuters. No claim to original U.S. Government Works. 19

the corporate structure of the U.S. and international entities. A foreign entity that can show a substantial dollar or volume amount of contracts with U.S. clients should be able to set up a branch office in the United States through which the clients are serviced, with profits repatriated to the foreign entity. This operation would demonstrate an exchange of services and/or money constituting trade. On the other hand, the foreign entity could set up a U.S. company which it majority-owns and through which it markets its services in the United States. If the employees or know-how come from abroad and the profits are repatriated, then this situation would appear to be analogous to the branch office. If, on the other hand, most of the employees are U.S. citizens and some or all of the profits are not distributed to the corporate owner abroad, it is possible that insufficient exchange of services and/or moneys occurs to constitute trade. (2) Showing that trade in services is substantial can depend on the measure usedand if the measure is the flow of services and/or money between the United States and the foreign state, the substantiality standard could be difficult to meet. In the last situation described above, when most of the employees of the U.S. entity are U.S. citizens and most profits are reinvested locally and are not distributed to the overseas shareholders or parent company, an appropriate measure of substantial trade may be difficult to find. Should substantiality be measured by the number of contracts or dollar volume of business of the U.S. entity, regardless of the contracts directly serviced from abroad or the amount of earnings repatriated? Or should the substantiality of the trade be measured by the services or goods that actually flow between the United States and the treaty country? A good case can be made for the former position, because the foreign parent provides its general procedures and know-how as the inward flow, and derives a number of benefits, such as increased name recognition and long-term profitability, as the outward flow. Whether these intangibles are sufficient forms of exchange for treaty trade purposes could prove a problem. (3) Showing that the business activity of the U.S. firm consists principally of trade between the United States and the treaty country raises the same issue of what constitutes a flow of trade. When employees of the foreign office are moving back and forth between the United States and the treaty country, and the money flows back to the foreign office based on contracts directly with that office, it is clear that the U.S. activity consists principally of trade between the United States and the treaty country. When the U.S. entity is a separately incorporated subsidiary of the foreign office, however, then the provision of services locally in the United States has little appearance of an exchange of services and/or money that could be counted as a flow of trade that is principally between the U.S. and foreign entities. In this case, it must be argued that the flow exists because of the intangibles highlighted in point #2, above, and therefore the full volume of local activity conducted by the U.S. subsidiary constitutes trade principally between the U.S. and the foreign parent which ultimately benefits from the local activity. Even when the U.S. entity is not locally incorporated, but is instead a branch office of the foreign company, a problem arises, because it is unclear that the branch office can be isolated from the rest of the corporate entity to determine whether it is engaged in activity principally between the United States and the treaty country. If the whole corporate entity of which the branch office is a part is instead analyzed to determine whether it is engaged principally in U.S.-treaty country trade, its full worldwide activities would have to be considered, with the result that it is unlikely that U.S.-treaty country transactions will make up at least 50% of the companys worldwide activities. This catalog of problems illustrates the difficulties in using the E-1 category to trade in services. The principal alternative is to use the E-2 treaty investor category for service businesses being established in the United States. Of course, this solution only applies if a treaty conferring investor status exists with the foreign country. If an E-2 treaty exists, however, that category has advantages for the service business, which can establish eligibility without the difficult proof issues involved in an exchange or flow of services and/or money. In addition, the investment in a service business need not be large possibly well below $100,000as long as it is sufficient to establish the type of business involved and the investor has put up most of the value of the business. (b). How much trade is substantial? Once it is established that the treaty company is engaged in trade, it must be shown that the trade is substantial. No set minimum dollar value is used in determining whether trade is substantial. Rather, trade is measured by: the volume of trade. the number of transactions. the continued course of trade. The flow of trade items must be existing, continuous, and numerous; a single transaction, no matter how large in dollar value or protracted in time, does not constitute substantial trade. Although the monetary value of the trade item is a favorable factor, it is more important to have numerous transactions. Because the flow must be existing and continuous, the existence of commitments for future trade is also important. Examples of Determining How Much Trade is Substantial A company has made four transactions within the last year with U.S. companies to supply them with turbines worth


$250,000 each, but has no commitments for future sales. The total dollar value of the trade is $1,000,000. The volume of trade is low, the number of transactions is small, and the course of trade does not appear to be continuous. A trading company sells small ceramics to 1000 different retail outlets, involving the import of 100,000 pieces. The company has maintained this volume for the past 10 years. The dollar value of this trade is $1,000,000 ($10 per piece). The volume of trade is high, the number of transactions is large, and the history demonstrates a continued course of trade. Example 2 clearly involves substantial trade. Example 1 seems to fall short of the requirements outlined above; in such a case, however, it is important to look at the details of the trading situation. Consider the following: (1) How many companies demand this type of turbine? (2) How many are sold a year? (3) What percentage of U.S. sales for this type of turbine do these transactions represent? (4) How many such turbines does this company sell worldwide? It may well be that with this type of equipment, four transactions in a year represent a substantial volume and indicate a market need that assures a continued course of trade. What conclusions can be drawn from studying these examples? (1) A relatively small dollar amount can still represent substantial trade when the criteria set out abovevolume, number of transactions, continued course of tradeare met. (2) A large dollar value, however, may well represent substantial trade, even when those criteria may appear, at first glance, not to be met. Look at the facts and apply a common sense approach. Dont concede that trade is not substantial based solely on volume if the dollar amount involved is large. One point in particular to note on the issue of substantial trade: Because of the requirement that the trading company demonstrate a continued course of trade, it is clear that, at a minimum, the trade must have already commenced prior to an application for treaty-trader status. The continued course of trade, however, may have been conducted informally prior to the visa application rather than through an established trading entity, as long as trading has been established and exists at the time of the application. Unlike the treaty-investor visa categoryin which treaty investors may enter the United States when they are actively in the process of investing in this countrytreaty traders will find it difficult to meet USCIS and State Department standards without an existing flow of trade. (c). What does trade principally between U.S. and treaty country mean? The meaning of principally is clear: More than 50% of the total volume of international trade of the U.S. office must consist of trade between the United States and the treaty country. Note these points: the rest of the business of the U.S. trading company can consist of trade with other countries and domestic U.S. transactions the parent company situated outside the United States need not be principally engaged in trade with the United States not every employee entering the United States in E-1 status must be principally engaged in U.S.-treaty country trade, as long as the U.S. office as a whole is engaged principally in that trade Some difficulties may arise in determining which transactions of the treaty enterprise can be credited as U.S.-treaty country trade. This problem particularly arises with service enterprises. The issue is much more clear-cut when the trading company deals with tangible goods. Note regarding need to meet the principally requirement on an ongoing basis: USCIS takes the position that the requirement that trade be principally between the United States and the treaty country is ongoing. Therefore, the U.S. enterprise must meet the requirement not only at the time that the E-1 alien applies for a visa or admission to the United States, but at all times during the period of stay of the E-1 alien. Although it may be necessary for the level of trade to dip temporarily below 50% during the normal course of doing business, such a departure from the rule must be temporary; longterm departures from the rule would render the E-1 alien out of status. (d). What duties are appropriate for E-1 treaty-trader aliens? Two types of employees of a trading company can enter the U.S. to perform services for the company: an employee performing supervisory or executive duties an employee serving in a minor capacity who has skills which are essential to the successful operation of the 2012 Thomson Reuters. No claim to original U.S. Government Works. 21

enterprise. Important Point to Remember: The company cannot expect to staff its operation in the United States completely with nationals of the treaty country. Common sense is the rule: the closer to the top levels of management the position is, the more likely that the person filling the position will qualify for treaty-trader status. At lower levels, only those positions requiring a specialized, technical knowledge of the companys product not readily available among U.S. workers can be filled with aliens in treaty-trader status. In this latter situation, the company may be expected to train U.S. workers eventually to fill the technical positions; visas for technical staff will not be indefinitely renewed. Generally, the company should be ready to justify the employees to be sent to the United States as truly key to the operations of the U.S. enterprise. Executive or Supervisory Duties Common sense should be used in considering who qualifies as a supervisor or executive for purposes of E-1 status. Consider these factors: the title of the position the location of the job in the companys organizational chart the aliens job description, including the degree to which work usually performed by technical staff is to be performed by the alien the degree to which the alien exercises ultimate control and responsibility for the operation of the firm or office the degree of supervisory responsibility for a large proportion of the enterprises operations the number and type of employees directed by the alien the qualifications of the alien that indicate that he or she is suited for an executive or supervisory role Just because an employee has some supervisory functions does not mean that he or she can be classified as an executive or supervisor for E-1 purposes. Supervisory or executive duties must be the employees primary function, with other job duties being incidental to this primary function. Note re overstaffing with managers/supervisors: A company should not expect to bring in five or six managers to oversee just a handful of employees. Although there is no easy rule of thumb to apply in determining how many managers and supervisors are sufficient to run an enterprise, some element of proportionality between the number of managers and supervisors and the total number of employees must be maintained. Consular officers frequently request information on the number of foreign managers in relation to domestic workers in the company. Note re family members as managers/supervisors: The State Department recognizes that a special relationship between the principal treaty alien and a manager/supervisor may explain why an otherwise under-qualified employee is given managerial responsibilities. The position must still meet the usual requirements for managerial/supervisory positions, however. Employees with Essential Skills Non-executive and nonsupervisory employees may qualify for treaty-trader status only if they have essential skills for the efficient operation of the company. Essential-skills personnel may have specialized or proprietary knowledge, or they may be highly-trained technicians or start-up personnel; in the case of start-up personnel, the enterprise will be expected to train U.S. workers to replace the personnel. Qualifying Types highly trained technicians familiar with the companys product who are engaged in training and supervision of persons employed by the company in manufacturing, maintenance, or repair of the product. highly trained technicians actually performing the manufacturing, maintenance, or repair of the product, when U.S. workers are unavailable. Nonqualifying Types persons whose essential skills consist of knowledge of the language or culture of the treaty country. persons whose expertise relates solely to a variation of a generic product, so that U.S. workers can easily be trained to deal with the variation. For example: foreign technicians who are specifically trained to repair the trading companys appliances, when those appliances are commonly made and serviced in the U.S., and any variations between the two products are slight. It is important to note the following points: being a skilled employee is insufficient; the skill must be essential to the companys operation in one of the ways listed the technician must be qualified for his or her position, as demonstrated by his or her prior experience; the technicians skills should be unique; and the salary of the technician should be commensurate with the nature of the expertise not only must U.S. workers be demonstrably unavailable, the company also has some obligation to use the alien technician


to train U.S. workers so that they can replace the foreign technician Note regarding September 1997 E rules. The legacy Immigration and Naturalization Service (INS) and the State Department each published final E rules in September 1997 that affect the definition of essential skills employees. Perhaps the most contentious issue in the proposed rules was the treatment of essential skills personnel. The INS proposal would have established a labor market test under which the employer would have had an affirmative duty to show that qualified U.S. workers were unavailable in order to justify the admission of essential skills personnel. While evidence of recruitment, such as advertising campaigns, was not explicitly required under the proposal, employers might have found such recruitment to be the only viable evidence they could have submitted to meet their affirmative duty. The INS proposal also would have required employers to document their efforts through in-house training programs to replace the alien workers in most cases. Finally, the INS proposal would have required essential skills personnel to have unique or one of a kind skills, or proprietary knowledge of the employers product or manufacturing technique. To some extent, these proposals had been implemented in change of status cases decided by the service centers, leading most applicants to pursue E status through nonimmigrant visa applications at U.S. consulates. Conceding that it lacked the statutory authority to implement these changes, the INS in its final rules adopted the existing State Department criteria relating to essential skills personnel discussed above. This development has resulted in more consistent determinations between USCIS and the State Department on this issue. Note that both rules also clarify that the nonimmigrant status of an E essential skills employee terminates when the principal treaty trader obtains permanent residence. The agencies reason that an employee is not entitled to E status if the principal alien is in the United States in a nonimmigrant status other than E status or as a permanent resident. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


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Immigr. Proc. Handbook 4:12 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:12. Special requirements for investors

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 As with treaty-trader status, treaty-investor status depends first on three things: a treaty between the United States and the country of which the treaty enterprise is a national at least 50% ownership of the investing enterprise by nationals of the treaty country citizenship in the treaty country by principal investors and enterprise employees seeking admission through the treaty enterprise

Note: The company must be at least 50% owned by nationals of the treaty country. Joint-venture companies qualify even when the joint venturers are from different countries. Also, in smaller investor situations, the investors can end up with 50-50 splits of stocke.g., four American investors and four French investors, all with equal sharesand still qualify for treaty consideration. The requirements for establishing treaty-investor (E-2) status are also discussed in detail in Immigration Law and Business 2:75. Note the following: active investment The investor must make an irrevocable commitment of funds that represents an actual, active investment substantial investment The investment must be substantial, taking into account only those financial transactions in which the investors own resources are at risk creation of jobs The investment cannot be marginal in nature, that is, one which will only support the investor and his or her family; in most cases it should create job opportunities for U.S. workers essential role in enterprise The person for whom treaty-investor status is sought must fill a key role with the company, either as the investor who will develop and direct the investment, or as a qualified manager or specially trained and highly qualified employee necessary for the development of the investment (a). What is an active investment? A qualifying investment must be active; that is, the business enterprise underlying the investment must represent a real

4:12. Special requirements for investors, Immigr. Proc. Handbook 4:12

operating enterprise productive of some service or commodity. Several types of business activity are clearly not active investments: uncommitted funds in a bank account, even a business account, do not represent an active investment, unless enough other evidence of business activities exists to show that the funds are used in the routine operation of the business (payment of bills, purchase of inventories or equipment) passive or speculative investment held for potential appreciation in value, such as undeveloped land or the securities of a business in which the investor is not actively engaged Examples Illustrating Borderline between Active and Inactive Investments (1) Mr. J. buys a piece of undeveloped land in a rural area. He immediately hires architects and other planners who develop plans for a condominium community on the site. Mr. J. enters into contracts with local builders to begin preliminary work on the site, and he registers with the state officials a prospectus setting out the terms for purchase into the condominium community, including his companys role as future manager of the property and provider of common services. This situation is undoubtedly one involving an active investment, and evidence of Mr. J.s plans submitted with his visa application should assure issuance of his E-2 visa. (2) A common situation is one in which the investor buys and manages a property that already involves an income-producing enterprise. Mr. J. purchases a shopping center, which has already been constructed, occupied, and in business for a number of years. Nevertheless, this investment is also active, in that Mr. J. must engage himself and his company in continuing to provide services to tenants of the shopping center, manage and maintain the center, and lease any unoccupied space. An E-2 visa would also be appropriate in this situation. (3) A common variation of the shopping center situation is for the investor to contract with a management company to handle all of the active business arrangements. In this case, the investment takes on many of the features of a passive or speculative investment held merely for potential appreciation in value. Unless the investor can show that he or she will be actively engaged in the business, it might be difficult to qualify for E-2 status. On the other hand, there is no reason why the person investing in an ongoing business enterprise should not be able to demonstrate an involvement in management even when a management company has been contracted to handle many of the business arrangements. The proof on this point is a question of submitting the proper documentation. Note, however, the difficulty in meeting the requirement of expanding job opportunities. As highlighted by Example 1, many common problems with the active investment question lie in situations in which the investor is actively in the process of investing, but the investment has not yet become fully operational. An investment need not be fully operational in order for the investor or qualifying employees to receive an E-2 visa. The active investment hurdle must be overcome, however. This question comes down to one of proof and of submitting the correct supporting documents to show that an active investment is planned. See 4:17. Note regarding use of escrow accounts. The legacy INS and the State Department each published final E rules in September 1997 addressing the use of escrow accounts. With regard to the requirement that the qualifying investment must be active, the rules endorse the use of escrow accounts to protect the investor in the event the E visa application is denied. Other evidence must still be submitted showing that the funds will be used in the routine operation of the business. (b). What is a substantial investment? No absolute test can be applied in determining whether or not an investment is substantial. The government uses an elaborate series of tests to evaluate whether or not the substantiality requirement has been met. These tests are quite complex. The Amount of the Investment The legacy INS and State Department have both reconfirmed that there is no minimum dollar amount necessary in order for the investment to be considered substantial. In reaching this conclusion, the government agencies approved an investment of well under $50,000 in a service businessan automotive design firm that supplied skilled designers to U.S. auto manufacturers on a consultancy basis. This ruling clearly opens the E-2 category to investments in service enterprises requiring very little capital for start-up expenses, since the principal investment in the enterprise is the knowledge and skills of the employees. In order for an investment to be considered substantial, it must meet one of two tests: it must be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses), or it must be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses). 2012 Thomson Reuters. No claim to original U.S. Government Works. 25

Note regarding small subsidiaries of a large parent company: Even when the foreign parent company has substantial investments in the United States through a number of subsidiaries, each subsidiary individually must be considered a substantial investment in order for its employees to qualify for E-2 status. In such a case, some subsidiaries may be able to qualify its employees, while the level of investment for other subsidiaries will not be considered substantial enough to qualify its employees. Benchmarks for minimum investments. The September 1997 rules provide guidance regarding a substantial investment. The legacy INS and the State Department had proposed the use of a sliding scale. Under that scale, the larger the total value of the business or the cost to start up the business, the smaller the percentage of the total investment the investor must put up to meet the substantiality requirement. Citing concerns that the scale may be applied rigidly by adjudicators, both agencies declined to include the scale in their final rules. The State Department has stated, however, that consular officers may still use the scale as a benchmark. As a result, it may still be good practice to refer to the scale in making an initial assessment as to whether an investment is substantial. Following is the sliding scale: Total value of business or cost to start new business Minimum percentage of investment required Less than $500,000 $500,000 to $3,000,000 More than $3,000,000 75% 50% 30%

Remember that multi-million dollar investments by large foreign corporations may be substantial without regard to their proportion to the total business value. Note also that the scale is not intended to be a rigid, bright-line test, but only a guideline; investments must still be evaluated on a case-by-case basis for adequacy. Small-scale investments may still be acceptableincluding ones smaller than $100,000if the amount invested represents nearly all of the total value of the business or the start-up costs. Types of Financial Transactions Making Up the Investment Not all financial transactions incurred in setting up the business enterprise can be counted toward calculating the amount of the investment. As noted, mere possession of uncommitted funds in a bank account in no way indicates that an investment has even been made. Even when an investment has clearly occurred, only those transactions in which the alien is personally at risk in the event of business failure can be counted. Following is a listing of qualifying and nonqualifying investments under State Department guidelines. Note that not all of these guidelines are well founded in the immigration law. Still, it is difficult to ignore the published standards. If your investment would have a problem qualifying under these guidelines, you should seek legal assistance before giving up on the E-2 visa. qualifying investments loans secured by the investors own assets, such as a mortgage on his or her real property. unsecured loans granted on the basis of the investors signature. cash reserves placed in a business account at the disposal of the business for purchase of equipment, property, or start-up inventory. (Remember, cash reserves alone, without evidence that the business enterprise has been undertaken, will not satisfy the requirement of an active investment.) value of purchased equipment and property. nonqualifying investments mortgage debt or other loans secured by the enterprise assets. loans for which the lending institution has recourse against a guarantor in the event of nonpayment by the investor. cash not held in reserve by the corporation, such as cash held in personal bank accounts. rental payments, inventory purchases, and other recurring costs beyond the start-up of the enterprise. Such costs are assumed to be paid out of income generated by the enterprise and are not a part of the investment attributable to the investor. (c). What is a marginal investment? No explicit requirement exists that an investment create employment for U.S. workers. This requirement is read into another requirementthat the investment not be marginal; that is, it must not be solely for the purpose of earning a living for the investor and his or her family. It is therefore important to be able to affirm, and to demonstrate, that the investment will create jobs for U.S. workers. The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the alien investor and the aliens family members. The question of what is marginal, therefore, depends more on the projected return on the

4:12. Special requirements for investors, Immigr. Proc. Handbook 4:12

investment than on the size of the investment. In new investments, this determination will therefore be somewhat speculative. Two ways of approaching this question can be taken: Is the business enterprise the type that, of necessity, will require employees beyond the investor in order to operate? Will the business be conducted on a scale that will assure this employment? Can reliable projections of income be made that show that sufficient funds will be generated beyond a living wage for the investor, such that money will be available to pay salaries to U.S. workers? Either type of showing should be sufficient to meet the requirement that the investment not be marginal. Of course, in an ongoing business, all that need be shown is that U.S. workers are in fact employed by the business enterprise. The September 1997 rules clarify that the capacity to employ U.S. workers must be established within five years of the principal investors admission to the United States. Any business plans submitted with the visa application must reflect that U.S. workers are currently employed by the enterprise or will be employed within five years. Presumably, extensions will not be granted beyond the five-year period if jobs are not created for U.S. workers, nor will visas be reissued for the same reason. Note: U.S. workers include all persons entitled and authorized to work in the United States on a permanent basis. These include aliens who are permanent residents, temporary residents legalized under one of the legalization programs enacted in 1986 (most of these persons have already become permanent residents), and aliens who have been accorded refugee or asylee status. Not included are nonimmigrant aliens, out of status or illegal aliens, aliens in deportation or exclusion proceedings, and aliens who are merely applicants for asylee status. (d). What constitutes an essential role in the enterprise? As already noted, both the principal investor and certain employees can obtain treaty-investor status. Principal Investors In order for one of the investors to enter the U.S. as a treaty investor, however, he or she must be responsible for the development and direction of the investment. This is obviously the case when the investor owns a majority interest in the investment enterprise (provided he or she has not ceded all managerial control), but not necessarily true when there is more than one investor. Example of Determining a Principal Investor Two French nationals join one U.S. citizen in establishing a French bakery devoted to the production and marketing of croissants. Each contributed one third of the capital investment, and each holds one third of the stock in the corporation. While the company is clearly qualified to send French nationals to the U.S. under the treaty with France, neither of the French investors has a controlling interest in the company, and a controlling interest is the test for determining whether the investor is responsible for development and direction of the company. Neither individual could come to the United States in E-2 status as a principal investor in the company. There is another way to have the French nationals come to the U.S., howeveras employees of the company (see discussion below). Note: There are three important features to the requirement that the entering alien on an E-2 visa be responsible for the development and direction of the investment: Ownership by an individual investor of at least 50% of the business is sufficient to qualify the principal investor on the basis of control Representatives of corporate investors holding less than 50% in the investment are treated differently. If the corporation has operational control of the investment through its minority stock holding, its representatives can qualify as investors responsible for the development and direction of the investment. Some individual investors might also qualify based on operational control, as long as the other holdings in the enterprise are sufficiently dispersed that the individual has effective control of the enterprise. Even majority ownership is insufficient to qualify an individual investor on the basis of control if the investor has ceded all managerial control over the enterprise. A majority owner who cedes managerial control over his enterprise does not 2012 Thomson Reuters. No claim to original U.S. Government Works. 27

have sufficient control to develop and direct that enterprise. Employees of the Investing Enterprise Two classes of employees may be accorded treaty-investor status, and these classes are very similar to the classes of employees entitled to treaty-trader (E-1) status: treaty nationals serving in a managerial capacity treaty nationals who serve in technical capacities requiring special training and qualifications, and who are needed to: establish the enterprise (start-up). train or supervise persons serving in technical positions, such as manufacturing, maintenance, or repair technicians. continuously monitor and develop product improvement and quality control. In effect, the employees must be essential for the companys operation. As with the treaty-trader status, a key aspect of determining how essential an employee is to the operation is whether U.S. workers have the necessary skills to fill the positions. When employees are brought to the U.S. for start-up of the enterprise, it is expected that once start-up has been completed, U.S. workers will be trained to fill these positions. The U.S. government has a policy establishing one year as the rule of thumb for the necessity for start-up personnel. Renewal of visas for start-up personnel after one year often occurs, however, if the employer affirms the need for their continued presence. As noted in the example with regard to principal investors that minority owners cannot come to the U.S. in E-2 status simply by the fact of their investment, because they do not have actual control of the enterprise. Such persons can, however, be hired by the company in managerial capacities, and can obtain E-2 visas by this means. They must have credentials that qualify them for managerial employment, however, in order to qualify for E-2 status in this manner. Note regarding Service standards governing employment of essential skill employees. The legacy INS and the State Department each published final E rules in September 1997 that effect the definition of essential skills employees. Perhaps the most contentious issue in the proposed rules was the treatment of essential skills personnel. The Service proposal would have essentially established a labor market test under which the employer would have had an affirmative duty to show that qualified U.S. workers were unavailable in order to justify the admission of essential skills personnel. While evidence of recruitment, such as advertising campaigns, was not explicitly required under the proposal, employers might have found such recruitment to be the only viable evidence they could have submitted to meet their affirmative duty. The Service proposal also would have required employers to document efforts through in-house training programs to replace the alien workers in most cases. Finally, the Service proposal would have required essential skills personnel to have unique or one of a kind skills, or proprietary knowledge of the employers product or manufacturing technique. To some extent, these proposals had been implemented in change of status cases decided by the service centers, leading most applicants to pursue E status through nonimmigrant visa applications at U.S. consulates. Conceding that it lacked the statutory authority to implement these changes, the Service in its final rules adopted the existing State Department criteria relating to essential skills personnel discussed above. This development should result in more consistent determinations between USCIS and the State Department on this issue. Note that both rules also clarify that the nonimmigrant status of an E essential skills employee terminates when the principal treaty investor obtains permanent residence. The agencies reason that an employee is not entitled to E status if the principal alien is in the United States in a nonimmigrant status other than E status or as a permanent resident. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:13. Special requirements for Canadian and Mexican..., Immigr. Proc....

Immigr. Proc. Handbook 4:13 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References

4:13. Special requirements for Canadian and Mexican traders and investors under NAFTA

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 NAFTA provides for the temporary entry of Canadian and Mexican citizens as treaty traders and investors. With one exception, requirements and procedures for Canadian and Mexican traders and investors are the same as those applicable to nationals from other treaty countries. The one exception relates to the strike provision contained in NAFTA which is only applicable to Canadian and Mexican traders and investors; under the strike provision, a visa or entry may be denied when the temporary entry of the citizen of Canada or Mexico may adversely affect the settlement of a labor dispute or the employment of a person involved in such a dispute. The strike provision is triggered only if the Department of Labor certifies the existence of a strike or work stoppage. E nonimmigrants already in the United States are not affected by the provision. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.


29

Immigr. Proc. Handbook 4:14 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status A. Overview References

4:14. The process for obtaining E status (generally)

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 A person seeking E-1 or E-2 status does not need to petition USCIS in order to obtain E status unless the person is already in this country in some other nonimmigrant category. In the latter case, a change of status application must be filed with USCIS (see 4:27 to 4:31) or the individual may leave the country to obtain an E visa at a U.S. consulate and reenter the U.S. as a E treaty trader or investor. To obtain the visa, the investor or trader must make an application for a nonimmigrant visa at U.S. consular post abroad. The procedures for making such an application have been revised substantially in recent years and vary by country. All applicants must first prepare and submit an electronic nonimmigrant visa application, Form DS-160. The applicant will also need to upload a digital photo with the application. Once the application is submitted, applicants are typically required to pay the visa application fee at a designated bank. After the fees are paid, the applicant may then schedule a visa interview with the consular post. The applicant often is asked to use a designated phone or online service to schedule the interview. Finally, the applicant must appear for his or her visa interview carrying the necessary documents, including the DS-160 confirmation page, proof of payment of the application fee, his or her passport, photos, and supporting documents establishing eligibility for the particular nonimmigrant visa sought (including the special E Supplement, Form DS-156E). Note that because of the complexity of these cases and the extensive supporting documentation that must be reviewed, many consular posts will prescreen E visa applications. During this process, the post will first review the application papers, and request additional documents (if necessary), prior to an interview with the persons or employees actually coming to the United States, in order to resolve first the eligibility of the investment or trading enterprise. The first interview is typically conducted with the E-1 owner or E-2 investor. Once the eligibility of the enterprise is established (and the company is registered), additional visa applications for company employees may then be expedited. While Canadian citizens are generally exempt from the visa requirement, Canadians seeking E status must obtain an E visa. The general procedures which must be followed to obtain a nonimmigrant visa from a U.S. consulate abroad are discussed in Ch 10. That chapter describes the common elements of a nonimmigrant visa application, the general filing procedures, and guidelines for visa issuance and renewal. Special considerations in E visa cases are discussed below. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:15. Usual application papers, Immigr. Proc. Handbook 4:15

Immigr. Proc. Handbook 4:15 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status B. The Application Papers References 4:15. Usual application papers

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The papers supporting an E nonimmigrant visa application consist of the following: 1. 2. 3. 4. 5. Form DS-160, the online nonimmigrant visa application (completed online before submission of documents for prescreening and before the visa interview) Printed Confirmation Page, confirming submission of DS-160 (submitted with the application package if prescreening required) Form DS-156E, Nonimmigrant treaty trader/investor application Supporting letter from the treaty enterprise or individual investor or trader Supporting documentation satisfying each of the elements of E treaty qualification (extensive documentation may be required for initial company registration; documentation regarding eligibility of enterprise not required if prescreening conducted and company is already registered) Passport and passport-sized photograph for the applicant and for each family member Application fee, if required on the basis of reciprocity (when required, the reciprocity fees are usually paid on the day of the interview)

6. 7.

8. Machine-readable visa fee of $390 Most of these elements are common to all nonimmigrant visa applications and are discussed in detail in Ch 10. With regard to E cases, note the following: The first step in preparing the papers for E treaty status is to check with the U.S. consulate where the application will be made to ascertain its requirements. Consultation with the consulate on its requirements for an E visa application can save time and effort. Detailed information is often included on the consular post Web site. Links to post websites are available at: http://www.usembassy.gov/. Information sheets issued by the U.S. embassies in London and Tokyo are reproduced in Appendix 4. Form DS-160, the electronic nonimmigrant visa application form, is now mandatory at all U.S. diplomatic posts (as of April 30, 2010). Form DS-160 is a fully automated application that is completed, signed and submitted on-line. Applicants using the DS-160 must also electronically upload a U.S. passport-sized identification photograph. Once the form is completed online, the applicant will need to print the confirmation page and either submit the document with the 2012 Thomson Reuters. No claim to original U.S. Government Works. 31

application package (if prescreening required) or bring this document to the visa interview (if the company is already registered or no prescreening is required). A completed DS-160 form is automatically transmitted to the consulate. The DS-160 application form combines the previously used DS-156 and DS-157. The form does not replace the DS-156E form, the E Supplement (see below). Details instructions on preparing and submitting Form DS-160 are provided in Ch. 10, below. A standardized E questionnaire was developed by the State Department several years ago to normalize the information sought by U.S. consulates worldwide in E-visa cases. The form (designated Form DS-156E, the nonimmigrant treaty trader/investor application) is mandatory for most E visa applicants. In view of this, a full annotation of the form is included in 4:18, below. All parts of the form are required for initial company registrations. For companies that are already registered, only Part III of the form is required (relating to the individual visa applicant). If the applicant is a treaty trader (E-1) or an executive/manager/essential employee (E-1 or E-2), he or she must complete the paper DS156E form as well as the electronic DS-160. If the applicant is a principal treaty investor (E-2), he or she should complete only the online DS-160. In the latter cases, the DS-160 form solicits the relevant information to determine eligibility for an E-2 principal investor visa. The State Department has increased the fees that U.S. consulates charge for processing nonimmigrant visa applications, effective June 4, 2010. Under its new tiered fee schedule, DOS will charge higher fees for visa categories that require more government resources to adjudicate and issue. The machine-readable visa fee has been raised from $131 to $390 for E visa applicants. These fees are in addition to any reciprocity fees that may be required of applicants whose countries of citizenship charge high visa fees to U.S. citizens. The MRV fee is typically paid in advance and evidence of payment must be presented with the application package (if prescreening is required) or brought to the interview (if the company is already registered or no prescreening is required). Following is a discussion of the materials that must be prepared by the treaty enterprise in support of the nonimmigrant visa application. Prior E treaty company registration and re-registration problems. Many consular posts use a process known as registration. The first time an E visa application is made involving a particular company, extensive documentation is required to establish the eligibility the qualification of the company or operation in the United States. Once the eligibility of the E-1 trading or E-2 investment enterprise is established and the company is registered, the posts will retain the corporate information for subsequent applicants and thereby expedite future E visa applications for individual employees. The registration letter from the post will be sufficient without the extensive supporting documentation required for initial registration that addresses the companys eligibility for visa classification. Re-registration of the treaty company will be required periodically. E treaty company re-registration policies vary among consular posts. As a practical matter, processing times can stretch to several months, placing E personnel in jeopardy of becoming stranded for indefinite periods during the re-registration process. The situation is made worse by the fact that many posts lack a formal procedure to advise companies when re-registration is due, and there seems to be no clear policy with respect to visa issuances prior to the filing or approval of re-registrations. Some posts, for example, renew E visas only for the balance of time left in an existing E-2 registration. Responding to this problem, the State Department has indicated that consular officers have the discretion to require an applicant to submit an entire E visa application whenever they apply. Because consular officers have the ability to request further documentation reasonably related to any visa application, it is not unreasonable to require applicants to present further documents detailing the information in the DS-156E, including company information. The State Department recommends that companies maintain good contact with consular sections processing E visa applications in order to be able to provide information whenever necessary and on a timely basis. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

4:16. The support letter, Immigr. Proc. Handbook 4:16

Immigr. Proc. Handbook 4:16 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status B. The Application Papers References 4:16. The support letter

Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Apart from the information included on Form DS-156E, the main portion of the E visa application consists of the supporting letter and supporting documentation from the enterprise. Those papers must set forth all of the basic elements for qualification for E treaty status described in 4:7 to 4:13. If the company is already registered, the company support letter should focus more on the position to be filled and the applicants qualifications. Assuming the company is not already registered, the supporting letter must include these essential elements: reference to the appropriate treaty a statement setting out the ownership of the treaty-qualifying company reference to the nationality of the individual for whom the visa application is made In addition to the three essential elements above, the cover letter must also include the following information, depending on whether it is for treaty-trader (E-1) status or for treaty-investor (E-2) status: E-1 status the nature of the companys trading business. the volume of trade being conducted. the percentage of total trade (by volume) between the U.S. operation and the treaty country. the duties to be performed by the individual for whom the application is being made. the qualifications of that individual to fulfill those duties. E-2 status the nature of the investment activity, i.e., the business to be conducted. the total value of the investment enterprise or the amount required to start up such an enterprise. the size and amount of the investment, including the proportion of the investment amount to the total value of the enterprise or start-up costs. the components of the investment, including cash, assets, inventory, and loans, and the source and security for such loans. the steps taken to undertake the investment, including the irrevocable commitment of capital and resources. the prospects for the employment of U.S. workers through the investment, including any workers already employed. the duties to be performed by the individual for whom the visa is sought. the qualifications of that individual to fulfill those duties. 2012 Thomson Reuters. No claim to original U.S. Government Works. 33

On the following pages are several sample letters illustrating various types of E visa situations, and annotations explaining those letters. Sample Letter 4-1 illustrates the E-1 treaty-trader situation. This letter is from a large company in a case involving a visa applicant who will serve in an

Immigration Procedures Handbook - Chapter 4 - E Visa Category

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