Below are Frequently Asked Questions about E-1 and E-2 Visas. Find out more about this new visa category here.
Q: Must the trading company exist and/or the investment have been made before the visa can be issued?
A: Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, contingent only upon the issuance of the visa. Investment funds may come from any country, including the United States, as long as they are controlled by the investor applicant.
Q: What is substantial trade?
A: Substantial trade contemplates a continuous flow of trade items between the U.S. and the treaty country. This means numerous transactions rather than a single transaction regardless of monetary value.
Q: What is a substantial amount of capital?
A: There is no fixed amount which is considered “substantial.” A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test. The proportionality test compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.
Such comparison constitutes the percentage of the treaty applicant’s investment in the enterprise. That percentage must compare favorably in the fashion of an inverted sliding scale starting with a high percentage of investment for a lower cost enterprise. The percentage of investment decreases at a gradual rate as the cost of the business increases. An amount of capital invested in an enterprise is merely presumed to be substantial when it meets or exceeds the percentage figures given in the following examples (amounts shown are in U.S. dollars):
- 75% investment in an enterprise costing no more than $500,000 (if the cost of the enterprise is substantially lower than $500,000, 85-90%, or even 100% investment may be required).
- 50% investment in an enterprise costing more than $500,000 but no more than $3,000,000.
- 30% investment in any enterprise costing more than $3,000,000.
- A multi-million dollar investment by a large foreign corporation is normally considered substantial, regardless of the examples given above.
The investment must do more than merely yield a return capable of supporting the investor and family. A marginal enterprise is an enterprise which does not have the capacity to generate significantly more than enough income to provide a living for the investor, family and other alien employees.
Q: Are joint ventures permitted?
A: Yes, provided that the business or individual investor applying for the visa is in a position to “develop and direct” the enterprise. The applicant is in such a position by controlling the enterprise through ownership of at least 50% of the business, possessing operational control through a marginal position or other corporate device, or by other means showing the applicant controls the enterprise.
Q: How long may the Treaty Trader or Investor stay in the U.S.?
A: The applicant must have the intention of departing the U.S. upon conclusion of the commercial activities. Nevertheless, holders of E-visas may reside in the U.S. as long as they continue to meet E-visa qualifications.
“Essential employees” may remain only as long as their skills are required to operate the business, and only as long as the owner can show either that U.S. workers cannot be trained to duplicate the skills or that the owner is making reasonable efforts to train U.S. workers as replacements.
For New Zealand, E-visas are valid for multiple entries to the United States for 60 months for treaty traders and qualifying employees. Immigration officials at the port of entry will make a final determination regarding the length of your stay in the United States, with extensions generally available for as long as the E-visa holder and family maintain their E-visa status.
Visit the Department of State’s website for more information about treaty traders and treaty investors visas.