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The E-2 Treaty Trader Must, Whether an Individual or Business or Individual Employed by that Individual or Business, Possess the Nationality of Country with whom the United States Maintains a Treaty of Commerce and Navigation: As of January 2002, eligible Treaty Investor countries are:
Argentina, Armenia, Australia, Austria, Bangladesh, Bulgaria, Cameroon, Canada, China (Taiwan), Columbia, Congo (Republic of), Congo (Democratic Republic of), Costa Rica, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Kazakhstan, Japan, Korea, Kyrgyzstan, Latvia, Liberia, Luxembourg, Mexico, Moldavia, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Rep., Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom and Yugoslavia.
Even if the treaty exists with the United States, a foreign investor who seeks E-2 visa status must meet all of the following requirements:
- The investor has invested or is actively in the process of investing;
- The investor's enterprise must be a real and operating commercial enterprise;
- The investor's investment is substantial;
- The investment is more than a marginal one solely for earning a living;
- The investor is in a position to "develop and direct" the enterprise;
- An E-2 applicant, if an employee of the investor, must be coming to the U.S in an executive/supervisory position or possesses skills essential to the firm's operations in the United States; and
- The E-2 visa applicant must intend to depart the United States when his/her E-2 status terminates.
At Least Fifty (50%) of the Corresponding E-2 Business Must Be Owned By Nationals of the Treaty Country: The nationality of the company's stock holders is significant. For instance, if a business owns another business, then the nationality of the business' ownership must be mapped back to the nationalities of the corporate shareholders. In addition, the country of incorporation is not important with regard to satisfying the shareholders' nationality requirements for the E-2 visa.
Persons Seeking E-2 Status Must Be Engaged in Qualifying Activities: In order to qualify for E-2 status, employees of an E-2 employer, whether or not the employer is an individual or foreign company, must be engaged in activities that are executive, managerial, or supervisory in character. If he or she is not so employed, he/she must possess special qualifications that make the services that will be rendered essential for the efficient operation of the business.
A person with an essential skill must possess "special qualifications." Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. The factors to be considered in determining whether an employee possesses "special expertise" that is "essential" to the firm's U.S. operations include such factors as the proven expertise, uniqueness of the specific skills, length of experience with the firm, the period of training, and the salary. In determining whether the applicant possesses special qualifications that are essential to the treaty enterprise, an INS officer must take into account all the particular facts presented.
The Road to Faster Adjudications: Premium Processing. On June 1, 2001 the Immigration and Naturalization Service introduced a premium processing service that allows E-2 employers or employees to pay a $1000 premium-processing fee (in addition to regular filing fees) for expedited processing of their E-2 petitions. In return for the $1000 fee, the INS will guarantee processing of petitions within 15 calendar days of receipt of the petition. Applications filed concurrently by dependents of a beneficiary choosing to use the Premium Processing Service will also be processed within 15 days without an additional $1000 processing fee. If the INS does not issue an approval notice, notice of intent to deny, request for evidence, or notice of investigation for fraud or misrepresentation within 15 days of physical receipt of a petition, the Service will refund the $1000 fee but will still expeditiously process the case. |
