Traders and investors, their families, and qualified employees of non-US-owned companies may be eligible for temporary US entry and work authorization in the E-1 Trader Visa and E-2 Investor Visa categories. An E-1 Trader Visa or E-2 Investor Visa applicant must be a national of a country that has a particular commercial treaty with the United States and must have principal investor or key employee status in the qualifying company.

E-1 Trader Visa and E-2 Investor Visa applications may be filed with a US consulate abroad.  Consulate have primary decision-making authority over whether to grant E-1 Trader Visa or E-2 Investor Visa status. No USCIS application is necessary. Timing, procedures and standards for E visas vary widely from consulate to consulate.

E-1 Trader Visa or E-2 Investor Visas and renewals may also be filed with USCIS in the US. However, all documentation must be re-submitted to a consulate abroad for visa issuance once a E-1 Trader Visa or E-2 Investor Visa holder leaves the US and prior to re-entry, and the consulate will review the application thoroughly, and has complete authority to overturn a previous USCIS decision.

Company and Employee Eligibility for E-1 Trader Visa or E-2 Investor Visa

To obtain an E-1 Trader Visa or E-2 Investor Visa for an employee, an E business must provide a substantial amount of detailed information, usually including:

• Updated financial and other detailed company information.
• Evidence demonstrating that the position offered and the work to be performed by the prospective E-1 Trader Visa or E-2 Investor Visa employee requires executive, supervisory or essential skills.
• Evidence demonstrating that the work to be performed is consistent with the activity forming the basis of the E-1 Trader Visa or E-2 Investor Visa classification.
• Evidence that the prospective E-1 Trader Visa or E-2 Investor Visa Employee does in fact have the qualifications to perform such the job offered. And,
• Evidence that the prospective E-1 Trader Visa or E-2 Investor Visa Employee has the same nationality as the E company at which s/he will work in the US.

E-2 Investor Visa and E-1 Trader Visa Executive or Supervisory Positions

According to the E Visa regulations, an executive position provides an employee with great authority to determine policy and direction of an enterprise. A position primarily of a supervisory nature provides an employee with supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.

Factors to be considered by a Consulate or USCIS Officer in assessing both a position and an E-1 Trader Visa or E-2 Investor Visa applicant are:

• Whether the E-1 Visa or E-2 visa applicant possesses appropriate executive or supervisory skills and experience.
• A salary and position title commensurate with executive or supervisory employment.
• Recognition or other indicators that the position is one of authority and responsibility in the overall organizational structure.
• Responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory employees.  And,
• If the position requires some routine work usually performed by staff, such functions may only be of an incidental nature.

Essential Employees in the E-2 Investor Visa and E-1 Trader Visa Context

Essential employees with “special qualifications” are persons with skills and/or aptitudes that an employee in a capacity “lesser” than executive or supervisory brings to a position that are essential to the successful or efficient operation of the treaty enterprise.

In particular, a US Consular Officer or USCIS Examiner must consider factors including:

• An E-1 or E-2 Visa applicant’s degree of proven expertise in the area of operations involved.
• Whether others possess the applicant’s specific skill or aptitude.
• Length of E-1 or E-2 Visa applicant’s experience and/or training with treaty enterprise.
• Period of training or other experience necessary to effectively perform the projected duties.
• Relationship of skill or knowledge to enterprise’s specific processes or applications, and the salary the special qualifications can command. And,
• Finally, note that knowledge or command of a foreign language and culture do not by themselves meet the special qualifications requirement.

A reviewing officer or examiner must also consider whether the skills and qualifications are readily available in the US, noting also that skills and qualifications necessary at one point (such as start-up) may not be necessary at a different time.

Individual or Small Business E-2 Investor Visa or E-1 Trader Visa

To qualify for a E-1 Trader Visa or E-2 Investor Visa, an individual applicant must provide substantial documentation regarding his/her investment and its source, a detailed business plan that includes information on revenue and expenses (preferably over the coming 5 year period), as well as documentation of the applicant’s ability to direct the particular business.

An individual or small business E-2 Investor Visa application must demonstrate that the investment is substantial and not marginal (for individuals, we recommend a minimum investment of $100,000+). Investments in a business that merely provides the applicant with living expenses will not qualify (for individual applicants, a detailed budget for the US will be required along with the application). In addition, an E-2 Investor Visa applicant must not depend on income from the investment as his/her sole source of income unless such income is far beyond what is necessary to support the Principal E-2 Investor Visa applicant and his/her dependents. Moreover, investments in businesses that do not at least in the future intend to employ US workers (US citizens or permanent residents) are unlikely to qualify.

E-1 Trader Visa applicants must document that the US business is conducting or will conduct regular trade in goods or services between the US and the E-1 Trader Visa holder’s country of nationality.

E-2 Investor Visa and E-1 Trader Visa: Other Features

• The E-1 Trader Visa or E-2 Investor Visa can be extended indefinitely, as long as the trading or investment activity in the US continues at a substantial level.
• An E-1 Trader Visa or E-2 Investor Visa does NOT necessarily establish a path to US Permanent Residence (Green Card) for principal investors and traders.
• Spouses of E-1 Trader Visa or E-2 Investor Visa holders may apply to USCIS for blanket work authorization in the US on an annual basis. Processing of work authorization for E spouses normally takes about 3 months from application receipt.
• The E-1 Trader Visa and E-2 Investor Visa classifications were not designed for retirees, for philanthropists as such or for the employees of nonprofit organizations. An E business must be an active business (passive investments will not qualify) that creates employment for US workers and/or provides some other kind of substantial economic benefit to the US.
• E-1 Trader Visa or E-2 Investor Visa holders must have the intent to depart from the US after the E business activity ceases. However, approval of a PERM labor certification application or other immigrant petition for an E-1 Trader Visa or E-2 Investor Visa holder shall not be a valid reason for E-1 Trader Visa or E2 Investor Visa renewals to be denied.
• An E-1 Trader Visa or E-2 Investor Visa is usually valid for a terms of 2 to 5 years, depending on the consulate at which it is issued, the nature of the E business and the nature of the E employment. Periods of admission to the US (as opposed to period of validity for the visa itself in one’s passport) is for up to 2 years.
• Requests for extensions filed with USCIS in the US are granted in terms of up to 2 years. The E-1 Trader Visa or E-2 Investor Visa applicant must be physically present in the US at the time of filing, and must have maintained the terms and conditions of his/her E visa at all times.
• With some exceptions, E-1 Trader Visa or E-2 Investor Visa employees who enter the US for start-up activities will be expected to finish those activities within 2 years, and they usually will not be granted extensions.
• Persons in other valid temporary visa categories may change status to E-1 Trader Visa or E-2 Investor Visa classification by making an application to USCIS with all relevant documents and other evidence.