E Visa - Visitors, Treaty Trader

Purposes and Uses of the E visa Category
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:

• Duration of Stay
  Although an initial period of stay of one year is granted to persons coming to the United States in the E category, this period can be extended almost indefinitely - as long as the alien affirms that he or she will leave the United States when the period of authorized stay, including unlimited extensions, ends.
• Application Process
  It is possible to make the application for this status exclusively through a U. S. consulate abroad. A preliminary petition on the form I-129 does not need to be approved by the INS.
• Special Conditions
  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.
• 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 company's principals or by its employees, as long as they are performing functions approved by the applicable rules, discussed below.

Rules Applicable to the E Category
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.

(a). The First Requirement: A Treaty of Commerce and Navigation or Bilateral Investment Treaty

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 the rules to determine a company's "nationality."

Treaty Countries (as of September 15, 1997)
Treaties or equivalent arrangements providing for trade and investment (E-1 and E-2) status are in effect with the following countries:

Treaties conferring only E-1 treaty-trader status exist with the following countries:

Treaties conferring only E-2 treaty-investor status exist with the following countries:

Note also that bilateral investment treaties conferring E-2 status have been signed with the following countries but have not yet entered into force: Albania ,Azerbaijan, Belarus, Ecuador, Estonia, Haiti, Honduras, Jamaica, Jordan, Latvia, Mongolia, Nicaragua, Russia, Trinidad & Tobago, Ukraine, and Uzbekistan. The pending treaty with Ecuador has been ratified by both parties, and should enter into force shortly, when the instruments of ratification are formally exchanged. Note that an existing treaty with Latvia already confers E-1 status on nationals of that country. 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 in 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 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.
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 E-1 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. Serbia/Montenegro
   Serbia/Montenegro, as a successor state to Yugoslavia, would also be entitled to treaty consideration, but its nationals are currently barred from E status because of international economic sanctions.
7. Eritrea
   The State Department has not yet indicated whether Eritrea will be considered a successor to the treaty with Ethiopia.

Typically, about one half of the treaty aliens issued E visas are from Japan. Another twenty percent come from the United Kingdom, Germany, and France. The next biggest users of the E category are from Korea, Taiwan, Israel, Canada, and Italy.

(b). The Second Requirement: Qualifying Under the Treaty (Treaty Company's Ownership)

In the 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. This rule is that foreign nationals must be maintaining E nonimmigrant status if they are in the United States.

Examples of determining the Nationality of a Company for Treaty Purposes

• Ten shareholders each own10% 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.

(c). The Third Requirement: Nationality of the Employee or Principal

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 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.

(d). Special Requirements for Traders

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, 2.5(g)(1). 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."