What’s the difference between E-1 and E-2 visas?

The E visa category includes both treaty traders (E-1) and treaty investors (E-2).  Both are non-immigrant visa categories for nationals of a country with which the United States maintains a treaty of friendship, commerce, and navigation, and share several identical requirements.  The visa categories are also different in significant and substantial ways, yet nationals of a qualifying country may sometimes qualify for both, begging the question:  Which one do I apply for?

The answer to that question will inevitably be the result of extensive consultation with immigration counsel, but here are a few general points to get that discussion started:

What requirements do the E-1 and E-2 visa categories share?

As mentioned, both the E-1 and E-2 visas are for nationals of a country with which the United States maintains a treaty of friendship, commerce, and navigation.  While some treaties qualify a country for both E-1 and E-2 eligibility, sometimes the applicable treaty will qualify the country for only one category, making the decision whether to pursue the E-1 or E-2 an easy one.

Both the E-1 and E-2 categories also require that the U.S. business be at least 50% owned by nationals of the treaty country (owners who are also U.S. lawful permanent residents do not count).  The visa applicant him or herself need not be an owner, but must share the same nationality.  For example, where the U.S. company is 50% owned by Italian nationals, and 50% owned by French nationals, both Italian and French nationals may potentially qualify for the E-1 or E-2 visa.

For both categories, the visa applicant may be a manager, executive, or essential employee, or in the case of the E-2 category, the investor him or herself.  As treaty-based visa categories, adjudication of the initial E visa application is the responsibility of the U.S. Department of State (i.e., the U.S. Embassy in the applicant’s country of nationality), not U.S. Citizenship and Immigration Services (USCIS) in the U.S.  However, for nationals currently in the U.S. in valid E visa status (either E-1 or E-2), USCIS will adjudicate requests to extend or amend that status or to change U.S. employers, provided that the new employer also meets the E-1 or E-2 eligibility requirements.

Furthermore, both the E-1 and E-2 visa categories are referred to as “non-immigrant intent” visas, meaning the applicant must not intend to remain in the U.S. permanently, and must be prepared to demonstrate to the U.S. embassy officer his/her intention to depart the U.S. upon the conclusion of their U.S. assignment.

A spouse, and children under the age of 21, may also apply for an E-1 or E-2 visa as a dependent of the principal applicant.  Furthermore, both E-1 and E-2 spouses are eligible to apply for work authorization once in the U.S., although it should be noted that applications for spousal work authorization are currently taking several months to adjudicate and the spouse cannot begin working until the work authorization application has been approved.

What requirements apply to the E-1 visa category only?

The E-1, or treaty trader, category requires a demonstration of “the existing international exchange of items of trade” between the U.S. and the treaty country.  The trade must be substantial, meaning it cannot be based on a single transaction and must be of a certain volume, and more than 50% of the total volume of international trade must be between the U.S. and the treaty country.  Proof of qualifying trade may include Department of Homeland Security bills of lading, customer receipts, sales contracts, and similar evidence of trade, and must be carefully documented to the satisfaction of the U.S. embassy officer reviewing the application.

Unlike the E-2 category, there is no requirement that a substantial investment has been made in the U.S. enterprise, although like the E-2, evidence must be submitted regarding the existence of the U.S. enterprise (e.g., articles of incorporation, office lease, share certificates as evidence of ownership, etc.).

Because the E-1 requires the trade to be in existence at the time of the visa application, this category is generally not available to start-up enterprises that have yet to conduct business in the U.S. via an established entity, and therefore have yet to conduct the requisite trade.  Such enterprises may, however, qualify for E-2 visa status.

What requirements are specific to the E-2 visa category?

The E-2, or treaty investor, category requires a demonstration that a “substantial” investment has been made in a U.S. business.  The U.S. business receiving the investment must meet the ownership requirements discussed above and must be “real and operating,” meaning that passive investments, such as those in undeveloped real estate for example, do not qualify.  The investment must also be at risk, meaning that if the U.S. business fails, the investment will be lost.  And lastly, the investment cannot be “marginal.”  This means that evidence must be provided that the U.S. business, as a result of this investment, will be able to support employees beyond just the E-2 visa applicant (i.e., an investor cannot qualify for an E-2 visa by investing in a U.S. business that will only support him or herself). While there is no specific dollar amount required for E-2 investments, to qualify as “substantial” the investment must represent a significant proportion of the total value of the business (if the investment is in an existing business) or of the starting cost of the business (if the investment is in a new business).  Different E-2 businesses in different industries will require different levels of funding.  For example, the funding required to launch a manufacturing business would be significantly higher than to launch a marketing firm.  In cases where the E-2 investment is being made in a new U.S. business, a detailed business plan is critical to convincing the U.S. embassy officer that a sufficient investment has been made to achieve the business goals of the particular enterprise.

Before applying for the E-1 or E-2 visa, can I travel to the U.S. as a visitor to scope out suitable locations and conduct similar business activities?

In short, yes.  Nationals eligible for travel to the U.S. under the Visa Waiver Program may enter the U.S. for periods of up to 90 days to conduct appropriate business activities such as attending meetings, scoping out suitable office locations, and even meeting with prospective U.S. customers. Similarly, nationals not eligible for the Visa Waiver Program may apply for and travel to the U.S. using a B visa.  Importantly, visitor travel under the B visa or Visa Waiver Program does not allow for any gainful employment in the U.S., so proposed activities in the U.S. prior to issuance of the E-1 or E-2 visa should always be discussed with immigration counsel prior to travel.