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Visas within the “E” category are for foreign nationals who intend to come to the United States as a treaty trader, treaty investor, or an employee of one of the two (including executive, supervisor, or essential positions) for a company that qualifies as an E visa entity. Specifically, E-1 visas are for treaty traders, while E-2 visas are for treaty investors. These E visas are made through treaties on commerce and navigation between the United States and other countries, thus, the foreign nationals must be citizens of a country with which the United States has agreed upon such a treaty. E-3 visas are specifically meant for Australian nationals who intend to come to the United States for a specialty occupation. They are not limited to work relating to international investment or trade, unlike the E-1 and E-2 visa. This visa classification was made by the REAL ID Act in 2005 and is often grouped with the H-1B visa classification although they are not exactly the same.
Typically, E-1 and E-2 status remains valid for 2 years, though the visa can be valid for 5 years. Individuals may apply for extensions and new visas as long as they still fit the requirements of the category. E-3 visas are valid for 2 years but can be extended through the United States Citizenship and Immigration Services (USCIS) for as long as the individual desires if they still fit the requirements of the visa. For all E visas, family (including children and the worker’s spouse) can come to the United States, and spouses are allowed to work if they acquire employment authorization. For E-1 and E-2 holders, their spouse and children will also hold E-1 or E-2 visas. For E-3 holders, their spouse and children will hold E-3D visas.
The requirements for E category visas vary depending on the specific classification of visa.
For all three types of E visas, only nationals from specific countries may apply. Countries for E-1 and E-2 visas must have an existing commerce and navigation treaty with the United States (this includes treaties of Commerce and Navigation, of Friendship, and Bilateral Investment Treaties—all treaties that are created in order to develop international commercial trade). Statues may also allow for individuals to acquire E category visas, including statues with Jordan, Singapore, and Chile. If the United States imposes a type of economic sanction, such as an embargo, on a country and the treaty becomes inoperable, E-1 and E-2 visas may be impacted.
For E-2 visas, this includes foreign nationals from the countries listed below:
E-3 visas are limited to Australian nationals only.
Accordingly, the individual receiving the E-1 or E-2 category visa must be a foreign national from one of the treaty countries. If it is a business that is the treaty trader or investor, the business must be at least 50% owned by individuals from one of the treaty countries. It is much easier to prove the ownership of smaller companies than to demonstrate the ownership of a parent company, one with large corporate structures, or of a publicly-traded company, as the company’s stock will be taken into consideration. Documentation to prove nationality of ownership includes articles of incorporation, articles of organization, certificates of shares, copy of the newest annual report, copy of stock exchange listings, as well as others. Typically, companies should have only one nationality. But, in cases where there are two equal owners from two different treaty countries, a company may have two nationalities and may apply for E visas with workers from both countries. Or, if the owner has a dual nationality, the owner would need to pick one nationality for the company. Whichever nationality is chosen must match the nationality of the employee applying for the E visa.
There are different employment requirements for each type of E visa that must be considered during the application process.
E-1 visas are specifically meant for treaty traders. Treaty traders are responsible for upholding trade (including in service or technology) primarily between the treaty country and the United States. It is required that a treaty exists, that the business or individual has the nationality of the treaty country, the work is considered to be trade and is considered to be substantial, that the individual is in an executive, supervising, or essential role, and that the individual will leave the United States when their duration of stay ends.
E-2 visas are specifically meant for treaty investors. Treaty investors are responsible for developing and directing an enterprise’s operations and must have or must currently be investing a large amount of capital (including assets and funds). As with E-1 visas, it is also required that a treaty exists, that the business or individual has the nationality of the treaty country, that the individual is in an executive, supervising, or essential role, and that the individual will leave the United States when their duration of stay ends. However, E-2 visas also require that the individual has or is investing a good amount of money in an enterprise (more than a marginal amount meant for earning a living), that the individual’s role allows them to direct and develop the enterprise, and that the enterprise is currently operating.
The treaty investor must be able to control the funds that they have or are investing, must put the investment capital at risk, and must irrevocably commit the funds to the enterprise. Documentation to prove investments meet these requirements includes a money trail of the invested funds, valid purchase agreements, and insurance appraisals. Likewise, funds must have been acquired in a legitimate way. The funds do not have to be from outside of the United States, however. If they are from the United States, it should be documented how the foreign individual is able to completely control the funds.
The individual, or, foreign corporation, must also own at least 50% of the enterprise in order to direct and control operations. If the individual has control over the capital, such as if the funds were earned or awarded, the individual must be able to use the invested funds unrestrictedly, and must be able to control the investment funds to direct operations. Inheriting a business is not considered to be an investment. Property ownership and rights, and financial transactions such as purchasing equipment or materials may be considered investments as well, even if the equipment is transferred from one country to another. If the equipment is given as a gift, it is considered to be owned and controlled by the investor who owns the company. For equipment to be considered an investment, it must be made known by the company that the equipment will be used for business purposes and not for personal use.
The investment capital also must be at risk, meaning, it is at risk of being lost for the sake of financial gain. Capital from indebtedness may only be used if it is the foreign individual’s own assets, not the business’ assets. Likewise, loans guaranteed by anyone but the investor may not be used.
The invested capital must be irrevocably given to the business as shown through bank statements, transfers, etc. The investment must not be speculative, having a plan to invest or just having the capital to invest is not enough to be considered irrevocable. If the treaty investor is in the process of investing, it is useful to show that the investor is at an irrevocable point in the process. Typically, this point can be considered to be when everything but the allocation of the investment has been completed so that business operations may soon start. Documentation to prove that this point has been met includes lease contracts and plans on how the individual will invest the funds.
The investment must also be substantial, it shouldn’t be a small amount meant to earn a living. The consular officer reviewing the application will use the proportionality test which compares the invested funds with the cost of operating the business in order to demonstrate how committed the investor is to the enterprise. A marginal investment that would not generate more than a minimal financial return enough for living costs does not count. Evidence of growth, such as income and expansion of jobs due to the contribution should be provided.
For both E-1 and E-2 visas, employees who are not considered to be traders or investors may apply as long as their employer qualifies. The individual must be of the same nationality as the employer. The employer must hold E-1 or E-2 status in the United States or qualify for one of the categories abroad, or the employer must be an entity, half of which is owned by foreign nationals with E-1 or E-2 status in the United States or would qualify for such statuses if abroad (19-20). The foreign national must take on an executive, managerial, or essential role in the United States, and there must be clear evidence explaining the individual’s proposed job duties that fit one of these categories.
Likewise, for both visas, it is required that the individual leave when their status ends. This may be proven by property documents from the individual’s home country, lease information, and plans that the individual may have upon returning.
The requirements of E-3 visas are much different than the requirements of E-1 or E-2 visas. The foreign worker must be coming to the United States for a specialty position that requires a bachelor’s degree (or the equivalent). A specialty occupation may be defined as a position that requires specialized knowledge or skill and the minimum education of a bachelor’s degree. The qualifications for a specialty occupation for an E-3 visa are the same as those for an H-1B visa as discussed earlier. The individual must have the required educational background, whether that be a bachelor’s degree or the equivalent. It is also required that the individual will leave once their status ends, or, change their status.
Trade is considered to be a type of exchange of qualifying commodities such as money, goods, or services in an international scope, and must already be ongoing at the time of the individual’s arrival in the United States. In this case, domestic trade does not qualify, only trade between the United States and the treaty country. 50% of the trade must be between the United States and the treaty country, the other trade can be domestic or international. Trade is considered to be a good or service, such as advertising, engineering, and other services that are frequently traded in international commerce. The trade must also be substantial, meaning it is continuous. The monetary value of trades may also be taken into account when deciding whether or not trade is substantial. Documentation to prove that the qualifying treaty trade exists includes contracts, letters of credit, financial statements, business plans, carrier inventories, documents showing trading activities, and more.
The enterprise through which the individual is working must be a real, operating business of entrepreneurial or commercial type offering a service or commodity within the United States. The enterprise must operate for a profit—it cannot be a non-profit business. Likewise, the enterprise cannot be a marginal enterprise (only existing to provide a living for the individual and his family) and also cannot be an idle speculative investment or paper organization (meaning it is held just in case its value appreciates, such as if the treaty investor owns stocks but doesn’t intend to direct the business).
As mentioned above, E-3 visas do not have the same requirements as E-1 and E-2 visas for businesses. For an E-3 visa, the employer must file a labor condition application (LCA) like with an H-1B visa. The labor condition application (LCA) should be filed electronically and involves a series of attestations that the employer must agree to such as paying the foreign national the required wage. The labor condition application must be for an E-3 visa, not an H-1B visa. Certain requirements that apply to H-1B employers, such as additional attestations or the short-term placement rule, do not apply for E-3 workers. However, the labor condition application (LCA) requires a great deal of prior research that employers should take into account when beginning the application process. For full information on the labor condition application (LCA), please see the article on the topic.
There are many steps that an individual must go through in order to apply for an E category visa.
Unlike other types of visas, a petition does not need to be filed in order to apply for an E visa. The individual may apply abroad straight through a consulate. If the individual is already in the United States, they can apply to change their visa status to the E category as long as they have maintained their previous visa status.
To begin, the G-28 form, or, Notice of Entry of Appearance as Attorney or Accredited Representative, should be filled out. Addresses of both parties should be included in the form. It is preferred to have this form printed on blue paper rather than white in order to speed up processing. Other information that should be provided on the G-28 form is proof of the requirements of E-1 or E-2 visas as well as proof of business activities, employment, and ownership.
Next, there must be a support statement from the United States company on the company’s letterhead. It must also be signed by a company representative. This statement should outline the activities of the enterprise and show why they need the services of the foreign national. It should potentially include an introduction, details about the employer, details about the employer’s activities and need for a foreign national, details on the foreign national’s position in the United States, the foreign national’s qualifications, and a conclusion. The section detailing the need for the foreign employee is the most important, and thus should include in-depth information on how the employee’s work will contribute to completing company objectives.
Next, the applicant must fill out the DS-160 form, or, the Online Nonimmigrant Visa Application as well as the DS-156E, or, the Nonimmigrant Treaty Trader/Investor Application. The consulate may also request other information, such as a business plan, so be sure to check with the consulate to see what they may require. It should also be kept in mind that E visas require a good amount of communication between the attorney and the Visa Issuing Post, thus, prompt communication helps the process move faster. For the DS-160 form, individuals should have a passport with at least two empty pages that will be valid for 6 months past the application date as well as upload a photo of themselves for the application.
The DS-156E form is split into three parts. Part 1 requires information on the company, including contact details as well as financial information. Question 10, which asks for a measure of international trade, is meant for only E-1 applications, and questions 11 and 12, asking for the type of investment and total investment, are meant for E-2 applications. Part 2 requires information on the company’s employees. Both of these sections may not need to be filled out if the enterprise is registered, though they may need to be updated. Part 3 is only required if an individual is applying for the visa. This part requires information on the treaty trader/investor, including a description of their intended position in the United States. To finish the DS-156E form, it must be signed by the responsible officer.
The application process for an E-3 visa is much different than that of an E-1 or E-2 visa. While a petition is not required to apply for an E-3 visa, it is necessary for the employer to file and receive a certified copy of the labor condition application (LCA) beforehand. The individual will also need a support statement from the United States company. The support statement should be on the company’s letterhead and signed by a representative of the company. It should include an introduction, details about the petitioner, why the company needs the worker, details on the worker’s position (including role, pay, and length of employment), the worker’s background, and a conclusion. To apply for an E-3 visa, it is also required that the G-28 form is completed as well.
Once all of the required documentation has been completed and any required fees have been paid, the application must be sent electronically to your consulate. Once they have received the application, you may move on to scheduling an interview appointment. The time it takes for processing and for scheduling your interview may change depending on the location, type of visa, and time of year. While some consulates will accept third party applicants, some are not able to, so it is best to apply at a consulate in your home country. Be sure to check with the consulate for any application information that may be particular to the consulate or country, such as how and in what order the supplementary information should be organized. It also may be necessary for the E enterprise to be registered at the consulate. This may delay the visa application process by a few weeks, and may even require a separate appointment. For the interview, an individual should bring the printed confirmation page of the DS-160 form, a copy of the photo, receipt from paying the application fee, passport, and a copy of the DS-156E form (website). Individuals should also provide an organized binder with all of the necessary supplementary information, such as proof that the company meets E-1 or E-2 requirements.
The steps for the application process for an E-3 visa are quite similar to those of E-1 and E-2 visas. The individual must submit the requirements for the E-3 application (DS-160 form, supporting documents, and a photo) before they can schedule an appointment for an interview. For the interview, the individual must bring the printed confirmation page of the DS-160 form and receipt for paying the application fee, a copy of the individual’s photo, a copy of the labor condition application (LCA), proof of professional qualifications, a valid passport, and any other requested documentation. As with all visas, individuals should check with their consulate for procedures or any other paperwork that may be required.
When arriving in the United States, the individual must present a passport and an E visa. If an individual has an E-3 visa, they should also bring a copy of the labor condition application (LCA). Individuals have a 10-day grace period when entering and leaving the country, but are not allowed to work during the period. Make sure to check your I-94 card, or if you don’t receive a physical one, check the Customs and Border Patrol website for your I-94 numbers, to confirm the duration of stay dates and to confirm that your family’s statuses are correct.
It is also possible to change your status to E-1 or E-2 while in the United States as long as the individual doesn’t partake in any work or management before receiving their visa. To do so, you must submit an I-129 form, E supplement, I-907 form (if it is desired to expedite the process), a copy of your passport, a copy of your I-94 card, as well as the documents listed above. Also, additional fees must be paid. Your petition should go through the designated Service Center of the United States Citizenship and Immigration Services (USCIS). E-1 and E-2 visas can be both extended and renewed. Visa renewal allows application information to carry over to new applications, allowing individuals to apply at a consulate without having to wait for enterprise documents. However, applicants may need to provide additional documentation. E-1 and E-2 visas may also be extended as long as the individual has stayed in status and remained in the United States while the extension was filed. There is no limit on the number of extensions that may be granted, and each extension may be for 2 years.
For an E-3 visa, it is also possible to change status to E-3 while already in the United States as long as the individual has maintained their previous visa status. To change the status, the individual must present the above documents as well as a G-28 form, I-129 form, labor condition application (LCA), and a copy of their passport and I-94 card. The individual must also pay any required fees. This petition should be sent to the Vermont Service Center of the United States Citizenship and Immigration Services (USCIS) for processing. E-3 individuals may also apply for extensions an indefinite amount of times.
For all E visas, different documents are required for the basic application process.
Documents required for the basic E-1 visa application include:
Documents required for the basic E-2 application include:
Documents required for the basic E-3 application include:
The processing timeline for E-1 and E-2 visas varies greatly depending on a few different factors. After completing the forms necessary to send an application to the consulate, the wait time for processing may be different depending on the location and time of year. Likewise, enterprises may have to register with the consulate beforehand, taking up to a few weeks. Typically, if the enterprise has been registered beforehand and the application is not subject to extra processing following your interview at the consulate, the application process may take anywhere from a few weeks to a few months.
The timeline for E-3 visas is a bit longer as the labor condition application (LCA) must be successfully filed first by the employer. Once prepared, it takes about a week to file a labor condition application (LCA). Once that has been certified, the individual may move on to their own application and processing through the consulate, Like all visas, processing times and the time it takes to schedule an interview vary by location and time of year. You should apply for your E-3 visa as early as possible as premium processing is not available, but typically the process will take up to two months.
Base Total: $205
Yes, family members (children and spouses) may apply for dependent visas. For E-1 and E-2 individuals, their family members will hold the same classification although they do not need to be of the same nationality. For E-3 individuals, their family members will hold E-3D visas. All spouses can apply for work authorization.
Yes, the holder of an E-1, E-2, and E-3 visa may travel abroad.
While there are advantages and disadvantages to both options, there are a few points that individuals should keep in mind. For E-1 and E-2 visas, processing times for a new application and change of status are typically around the same, although applications may take longer periods of time more frequently. If the individual came to the United States through the Visa Waiver Program (VWP), the individual must apply for an E visa outside of the country. Likewise, if the individual is already in the United States but plans to travel outside of the country, they must apply from abroad. However, if the individual is already in the United States with no plans to leave, it may be easier just to apply through a change of status petition, saving them airfare and time. Likewise, their spouse can apply for work authorization at the same time as the petition. However, the change of status petition requires more documents than the application and has a different set of fees that individuals should be aware of.
For E-3 visas specifically, it may be much faster to apply through an application than through a change of status petition as the latter go through the United States Citizenship and Immigration Service’s (USCIS’s) service center in Vermont with processing times of 30 days to 6 months. The same rules regarding the Visa Waiver Program (VWP) apply to E-3 visas.
For E-1, E-2, and E-3 visas, if your employment ends before your visa expires, you can remain in the United States for either a 60-day grace period or for the remaining length of your visa (whichever one is shorter). You are not allowed to work during this period.
E-1 and E-2 individuals can only work in the position and for the employer described on their application. If they change their status without authorization, they will become out of status and must leave the country. Any change considered to be substantive, or, considered to have changed the basic characteristics of the employer, an amended E petition must be filed through the United States Citizenship and Immigration Services (USCIS) or a new visa issued by the Department of State (DOS). Working for a subsidiary or a parent enterprise does not count as a substantial change.
For E-3 visas, if there has been a change in the individual’s employment (such as a change in employer), the United States Citizenship and Immigration Services (USCIS) must be notified and a new labor condition application (LCA) and potentially other documentation must be filed.