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E-1 vs E-2 Visa

E-1 vs E-2 visa

There are a number of ways foreign nationals can enter the United States. One of these is by using a temporary non-immigrant visa. E-1 and E-2 visas are called “temporary worker” visas. E-type visas have specific application and requirement criteria. Learn about the different benefits of E-1 vs E-2 visas by reading below.

E-1 and E-2 category visas are made for the citizens of treaty countries. These are countries that have a treaty of commerce, navigation, or trade with the United States. Both visas require you to adhere to a set of requirements. Upon fulfilling them, you will be able to receive your two-year E-class visa.

The E-1 Visa – “Treaty Trader”

E-1 visas are to allow citizens of treaty country nationals admission to the United States. This permission is contingent on the national in question intending to conduct substantial international trade on his or her own behalf. These visas help business owners, managers, and employees stay in the United States for prolonged periods to manage business operations in the US. The same applies to other employees or businesspeople who are crucial to the success of their business. With a relatively short processing time, the E-1 is an attractive option to those who are qualified.

General Qualifications of an E-1 Treaty Trader

In order to qualify for an E-1 classification, a treaty trader must:

  • Be a national of a treaty country with which the United States maintains a current agreement of commerce and navigation.
  • Carry on substantial trade internationally between the treaty country and the United States.
  • Carry on principal trade between the United States and the treaty country which qualified the treaty trader for an E-1 classification.

According to the definition above, trade refers to the international exchange of trade items between the United States and the relevant treaty country. Trade items can include, but are not limited to:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Specific news-gathering activities

‘Substantial trade’ is not a fixed amount. What does matter, however, is the continuous flows of sizable international trade items, involving numerous transactions over time.

E1 E2 Visa

The monetary value of transactions are important. Of greater weight, however, are numerous and frequent transactions of an overall greater value.

The term “principal trade” is often used in this context. It means that international trade between a treaty country and the United States is over 50% of the total volume of exchange of the business.

The E-2 Visa – “Treaty Investor”

This particular visa classification and its criteria for eligibility are more or less similar to E-1 visas, except it is for investors from treaty countries rather than traders. The notable difference is in the focus towards actual capital investment and the role of the visa holder. The role of the visa holder should be focused on developing or directing the investment enterprise.

As such, the E-2 non-immigrant visa allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. To learn more about E-2 visa processing times or current treaty countries, you can visit our pages on these topics.

General Qualifications of an E-2 Treaty Investor

The treaty investor must adhere to the following in order to qualify for E-2 classification:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation.
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
  • Be seeking to enter the United States solely to develop and direct the investment enterprise. 50% ownership of the enterprise can establish this. Alternatively, possessing operational control through a managerial position or other corporate device can also establish it.

The treaty investor must also demonstrate that his or her investment funds are legitimate. To clarify, the treaty investor must place their investments, including funds and/or other assets, at risk in a commercial sense to generate profit. As such, the investment must be subject to partial or total loss in case the investment fails. Your funds must be irrevocably committed to the enterprise in order to qualify for the E-2.

Defining “Substantial” Capital

For the purpose of the E-2 classification, a substantial amount of capital is:

  • Significant in relationship to the total cost of either purchasing an established enterprise, or establishing a new one.
  • Enough to ensure the successful running of the enterprise thanks to the treaty investor’s investment.
  • Of a significant amount to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher an investment must be, proportionately speaking, to be considered substantial.

Here, care must be taken to ensure that the enterprise is not evaluated as marginal. What does this mean? It means that the enterprise must have enough present or future capacity to generate more than enough income to provide a basic standard of living for the treaty investor and his or her family. Otherwise, it will be deemed marginal. Not all new enterprises will have such capacity, but may still qualify. In such cases, however, within five years from the date that the treaty investor is classified as E-2 qualified, the enterprise must generate such income.

A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

Period of Stay: E-1 & E-2 Classification

Qualified treaty traders, investors, and their respective employees can stay a maximum of two years in the United States. Two-year extensions can be provided upon request. All E-1 and E-2 non-immigrants must intend to depart from the United Sates when their status is terminated or expires. Also, there is no limit to the number of granted extensions, so your stay in the U.S. could be indefinite as long as you can continue to show that you are developing your enterprise.

E-1 and E-2 non-immigrants can be granted an automatic two-year period of readmission when traveling abroad and returning to the United Sates. This means that there is no need to file a Form I-129 with the USCIS in this situation.

General Qualifications for Employees of a Treaty Trader or Treaty Investor

The employee of a treaty trader or investor must satisfy the conditions below in order to qualify for E-1 or E-2 classification:

  • Share nationality of the principal alien employer, which is that of the nationality of the treaty country.
  • Meet the definition of “employee” under relevant laws.
  • Either possess special qualifications, if employed in a lesser capacity, or be engaged in duties of an executive or supervisory role.

Persons residing in the United States who have the nationality of the treaty country must own at least 50% of the enterprise or organization. This condition applies in scenarios where the principal alien employer is not an individual. Such owners must maintain non-immigrant treaty trader or investor status.

If the owners are not present in the United States, then they must, if they were to seek admission to the country, be classifiable as non-immigrant treaty traders or investors.

If an employee’s duties provide him or her with ultimate control and responsibility for the organization’s overall operation, or a major component of it, then they are classified as a supervisory executive.

Employee Importance to Business Operations

Furthermore, an employee’s services must be essential to the efficient operation of the business. As such, there could be several circumstances which, depending on the facts, meet this requirement. This is then known as a special qualification. Such scenarios include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations.
  • Whether others possess the employee’s specific skills.
  • The salary that the special qualifications can command.
  • Whether the skills and qualifications are readily available in the United States.

In some cases, a skill that is essential at one point in time may become commonplace at a later point in time. in such cases, scarcity of skills does not satisfy the above requirements.

Terms and Conditions of Status: E-1 & E-2 Classification

E-1 or E-2 workers can only work in activities approved when the classification was granted. However, exceptions exist. The following must be true to avail the possibility of work for the treaty organization’s parent company or one of its subsidiaries:

  • Relationship between the organizations is established.
  • Subsidiary employment requires executive, supervisory, or essential skills.
  • Terms and conditions of employment have not otherwise changed.

“Substantive change” must be communicated to USCIS. USCIS must approve any substantive change in the terms or conditions of E-1 or E-2 status. A “substantive change” is therefore a fundamental change in the employer’s basic characteristics. Examples of this are mergers and acquisitions. Major events that affect the treaty trader, investor, or employee’s previously-approved relationship with the organization also qualify as substantive changes.

The treaty trader, investor, or enterprise must notify USCIS by filing a new Form I-129, along with the fee. Provide the USCIS with a complete description of the change as well. A recommended step is to simultaneously request an extension of stay for the treaty trader, investor, or affected employee. In this case, file the form and provide evidence that the treaty trader, investor, or affected employee continues to qualify for E-1 or E-2 status qualification.

E-1 vs E-2 Visa Cost

Both visas require you to file an I-129 form, incurring the same basic filing fee of $460. If you are outside the U.S., then you will have to go through consular processing, which means you will need to file a DS-160 (which has a fee of $160) and go to a consular interview.

The E-1 and E-2 differ in cost only when you consider the investment amount for the E-2 visa. The E-1 does not require an up-front investment, so it is ultimately the cheaper visa. However, the filing process should cost you the same for both visas.

How Our Immigration Attorneys Can Help

Choosing the correct visa is often the first step to any successful immigration journey. However, there are many factors that determine which visa would be best for your unique situation. The key to choosing correctly is to have an immigration attorney advising you on the best decisions to make.

Our experienced team of immigration and visa consultants are here to help you with your E-1 and E-2 visa application. You can fill out our contact form to schedule a private consultation of your case.