The E1 and E2 Visa Application Process

Overview - Change of Status vs Consular Processing

What is Immigration “Status”?

Every person who is not a US Citizen and is lawfully in the United States has an immigration “Status”. “Status” denotes the way in which a person is present in the United States and what that person is permitted to do in the United States.

Status is initially conferred at the point to entry to the United States and is usually determined by the visa used to arrive at the US border. Thus, a student seeking to enter the US using an E1 treaty trader visa will usually be admitted in “E1 Status”.

The Status in which an applicant is admitted to the United States is in the hands of the border officer. On rare occasions the Status of a foreigner admitted to the United States might not match the status of the visa used to get to the US border.

What is a Visa?

A US visa is a document that enables you to arrive at the US border and seek admission to the United States. A visa and its validity dates are of no meaning while you are present in the United States.

Regardless of the validity period of an E2 or E1 visa, an E visa holder is typically admitted to the United States for a period of two years. Stated differently, an E visa holder is granted two years of E Status when entering the United States.

What are E1 and E2 Visas? How do they differ from each other?

E-1 and E-2 visas are non-immigrant visas designed for individuals from a country that has a treaty of friendship, commerce, and navigation with the United States. These visas serve two distinct purposes: E-1 visas are for those who intend to engage in substantial trade primarily between the United States and the treaty country, while E-2 visas are for individuals who want to establish and manage an enterprise in which they have invested or plan to invest a significant amount of capital.

Who qualifies for the E1 Treaty Trader visa?

According to the guidelines set by USCIS, the E1 visa is intended for nationals of a treaty country who seek admission to the United States solely for the purpose of conducting international trade on their own behalf. To meet the eligibility requirements for an E1 visa, applicants must:

• Belong to the same nationality as the principal alien employer, who must hold the nationality of the treaty country.
• Meet the definition of an "employee" as specified by the relevant law.
• Either perform executive or supervisory duties or, if employed in a subordinate role, possess special qualifications that are vital to the efficient functioning of the treaty enterprise.
• The key to a successful E1 visa application lies in satisfying the "special qualifications" criteria.

In this context, special qualifications refer to skills and expertise that are essential to the operation of the treaty business. USCIS evaluates this by considering:

• The employee's proven expertise in their field of operations.
• Whether others possess the same specific skills as the employee.
• The salary that can be commanded by these special qualifications.
• The availability of similar skills and qualifications within the United States.
• Individuals eligible for the E1 Treaty Trader visa typically receive an initial stay of up to two years. If needed and as long as the individual remains eligible, this stay can be extended in increments of two years.

Who qualifies for the E2 Treaty Investor visa?

While the E1 visa is intended for nationals of a treaty country engaging in international trade on their own behalf, the E2 visa caters to individuals who wish to be admitted to the United States by making a substantial capital investment in a US-based business. The USCIS rules also mention the possibility for certain employees of a qualifying person or organization to obtain an E2 visa.
To have a successful E2 visa application, candidates must meet the following criteria:

• Be a national of a country that has a commerce and navigation treaty with the United States.
• Have made a substantial capital investment, or be actively involved in the process of investing, in a genuine enterprise within the United States.
• Seek entry into the United States solely to develop and oversee the investment enterprise. This can be established through demonstrating at least 50% ownership of the enterprise or by having operational control through a managerial position or other corporate arrangement.

What a E2 Treaty Investor Visa or E1 Treaty Trader is Not

A visa does not guarantee entry to the United States in E2 Status. When you arrive at the US border a US border officer who works for CBP will determine your eligibility to enter the US in E2 Status.

CBP is the US government agency that controls the US borders. The US State Department make visa decisions. As the US State Department is a different Government agency a decision from the US State Department to issue and E2 visa is not binding on CBP. One way to think of your E visa is a request from the US State Department to CBP to admit you to the US in E2 Status.

Occasionally either a two year period of stay is not granted or the officer at the US border makes a mistake entering data to the US Government’s computer system. This can result in periods of authorized stay/status of less than two years. It is essential to check the period of stay granted at the US Border by visiting the US Government’s I-94 download page.

What is Change of Status?

Change of Status allows a person who is present in the United States in a particular status to “change status” to a different category without leaving the country. This is NOT a visa application.