E status is based on three elements: The first element is a foreign "presence." There must be either an individual or a business in a country other than the U.S. that will engage in trade or investment in the U.S. This is called the Treaty Trader or Investor.The second element is the U.S. "presence." The individual or entity with the foreign presence must be seeking to establish a presence in the U.S. by engaging in either trade with, or investment in, the U.S. This might be accomplished through the establishment of a U.S. business (an active investment, called the "U.S. Enterprise") or merely through engaging in trade between the "Treaty Country" and the U.S. (such as in the case of trade).The third element is a foreign national who is personally seeking admission to the U.S. This might be the individual Trader or Investor, or it might be an employee of the Trader or Investor. This is the foreign applicant.
E 2 status is available when (1) a foreign business or individual (the "Treaty Investor") is or will be making a substantial and irrevocable investment in the U.S. in an enterprise that creates jobs, and (2) the Investor's home country has a "treaty of commerce and navigation" or a "bilateral investment treaty" with the U.S. The foreign national and the Treaty Investor must have the same nationality.
To qualify for E 2 status, the Investor must evidence the following
Visa Validity versus Authorized Stays
E applicants who apply for E visas directly with U.S. consulates in their home country receive E visas, the validity of which will depend on the reciprocity rules between that home country and the U.S. For example, an Argentinean applicant would receive an E visa that is valid for five years, and an Australian applicant's E visa would be valid for four years. Each such applicant would then be admitted by the CBP at a port of entry to the U.S. for two years, regardless of the duration of each person's visa. Although this might be irritating at the beginning of an assignment in the U.S.-when the underlying visa is good for several more years than the authorized stay-it has advantages toward the end. This is because the CBP issues authorized stays of two years, even if fewer than two years remain on the visa.
E applicants who petition the USCIS to change from another lawful status in the U.S. to E status receive an authorized stay of two years, regardless of their nationality.
Similarly, foreign nationals who petition the USCIS to extend E status will receive extensions in two-year increments. Applicants who apply to a U.S. consulate for new E visas will receive validity periods in accordance with referenced reciprocity rules, regardless of the duration of validity of stay granted by the USCIS.
If the E applicant and the Foreign Treaty Trader/Investor are not the same person, then they must hold the same nationality.1 Nationality is not the same as residence. Permanent residence is insufficient for E purposes. Nationality is determined in accordance with the laws of the country whose nationality is claimed.
The nationality of a business is determined by its owners; the place of incorporation has no bearing on its nationality. Businesses involved in Treaty Trader or Investment situations must demonstrate that at least 50% of the firm is owned by nationals of the Treaty Country
Enterprise: The U.S. commercial (for-profit) business in which the Investor invests its funds.
Treaty Country: The home country of the Treaty Trader or Investor, and the foreign applicant for the E visa or status (if they are different). It is the country with which the U.S. must have a qualifying treaty.
Treaty Country National: An owner or employee who claims to be a national of the country with the relevant treaty with the U.S., under which E status will be sought. The Treaty Country National might be the Trader or Investor, an owner of a business that engages in qualifying trade or investment with the U.S., or an employee of a qualifying Treaty Organization or Enterprise.
Treaty Organization: A business that claims the nationality of the country with the relevant treaty with the U.S., under which E status will be sought. If a Treaty Organization is involved in a given E application, it is the business in the U.S. or abroad that engages in the investment or trade.
Treaty Investor: The person or entity that owns the substantial investment in the U.S.
Treaty Trader: The person or entity that engages in substantial trade between the U.S. and the Treaty Country.
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Jagat Kooner, Esq. Admitted to Minnesota Bar. Authorized to Practice Immigration and Nationality Law in All 50 States and US Territories Pursuant to 8 USC 1292.1. Law practice in California limited exclusively to immigration law. Our office does not provide legal advice on California or any other state law.