The E categories are designated for aliens engaged in international trade or investment between the United States (U.S.) and the aliens’ countries of nationality, provided the U.S. has an appropriate treaty relationship with the foreign country.
A treaty country is a foreign state with which a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent exists with the U.S. A Treaty Country includes a foreign state that is accorded treaty visa privileges under section 101(a)(15)(E) of the INA by specific legislation. A listing of countries with whom the U.S. currently has treaties can be downloaded from the State Department’s Foreign Affairs Manual (9 FAM 41.51 Exhibit 1 to obtain the correct list or click on the link below):
TREATY RECIPROCITY LIST BY COUNTRY
Note: There is no petitioning process for the E categories. E-nonimmigrant classification is granted through an application process. If outside of the U.S., the alien may apply for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad. If the alien is inside the U.S., the Petition for Alien Worker and E supplement is used to apply for a change of status, extension of stay, or change of employment. Applications for E-1 or E-2 status may be filed only at the Texas or California Service Centers. However, if an alien currently in E-1 or E-2 status is requesting a change of status to another nonimmigrant classification, the application for change of status must be mailed to one of the four BCIS Service Centers with jurisdiction over the new requested classification.
For the alien to visit the U.S. temporarily for trading or investing purposes, the requirements outlined at 8CFR 214.2(e) must be met. Potential applicants are also encouraged to consult Department of State regulations at 22CFR 41.51. A brief summary of the requirements for E-1’s and E-2’s follows.
Dependents (spouses and unmarried children under 21 years of age) of an E-1 or E-2 nonimmigrant will be admitted under same classification as the principal. The dependent spouse and child(ren) are not required to have the same nationality as the principal alien.
Effective January 16, 2002, spouses of E-1 treaty traders or E-2 treaty investors who have been admitted to the United States under sections 101(a)(15)(E) of the Act are authorized employment without restrictions. Further, an unmarried dependent son or daughter of an E nonimmigrant employee of the Taiwan Economic Cultural Representative Office (TECRO) is authorized employment without restriction. In order to obtain work authorization, the E nonimmigrant spouse must submit:
– Application for Employment Authorization, to the Service Center with jurisdiction over the dependent spouse’s place of residence;
– evidence of the E nonimmigrant principal’s current status;
– the dependent spouse’s and the principal’s Form I-94 Arrival-Departure Records as evidence of admission or change of status; and
– a copy of the Form I-797 approval notice for the E nonimmigrant principal’s petition, if available.
E-2 Treaty Investor
The E-2 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital.
If the alien is inside the U.S., the Petition for Alien Worker should be used to apply for a change of status, extension of stay, or change of employment. This category does not require a petition for employment if the alien is outside of the U.S. In that case, the alien applies for this category on his or her own behalf directly to a U.S. consular office abroad.
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
Application Document Requirements
The application must be filed with the appropriate fee payment, and evidence that:
– The investor is a national of a country with whom the U.S. has the requisite treaty or agreement;
– The alien (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise. The alien must demonstrate that he controls the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
– The investor has invested in or is actively in the process of investing in the enterprise;
– The investment is substantial, i.e. sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
– The investment enterprise is not a marginal enterprise;
– If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
– That the applicant intends to depart the U.S. upon the expiration of E-2 status.
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