E Visa

The E-1 (Treaty Trader) or E-2 (Treaty Investor) Visa is available to a person who is national of a country with which the US maintains a treaty of friendship, commerce and navigation (or bilateral investment treaty or other arrangement) and who will work for an entity in the US that holds the same nationality (at least 50%) as the treaty country (foreign owned company). To qualify, the foreign national’s work in the US must be to carry on substantial trade of goods, services or technology, principally (more than 50%) between the US and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing, a substantial amount of capital. The E Visa not only applies to the principal owner or investor, but also to those in executive, supervisory/managerial, or essential employee/specialized knowledge capacity positions. In order to qualify as an essential employee, the employee’s skills must be indispensable to the success of the enterprise – ordinarily skilled and unskilled workers do not qualify. Managers/executives have greater options for green card processing. Unlike the L-1 Visa, the E applicant need not have previously worked for the related company abroad.

E Visas do NOT have maximum validity dates and can be extended as long as the terms of the visa continue to be met. The period of admission noted on the E visa holder’s I-94 card upon admission to the US is granted for 2 years, although the actual Visa can be granted for several years (maximum is usually 5 years). Prior to the end of the 2 year period of authorized admission, E status (controlled by the expiration date on the I-94 card) can be extended in the US by applying directly to the appropriate US Citizenship and Immigration Services (USCIS) Regional Service, or it can be extended by the E Visa holder leaving the US and returning (and obtaining a new I-94 card with a new expiration date). The 2 year period of admission for E status should be granted even if the E Visa is valid for less than that time period. In order to enter the US after foreign travel, however, the E Visa must be valid. Foreign nationals may seek US green card status while on an E Visa.

E-1 Treaty Trader

A foreign national employee who meets the qualifications noted above in the general E Visa description and who will work in the US to further substantial trade of a sizable and continuous volume may use an E-1 Visa. The item of trade, and title of that item, must pass from one party to the other in exchange for consideration.

E-2 Treaty Investor

A foreign national employee who meets the qualifications noted above in the general E Visa description and who will substantially invest in the entity in the US to ensure successful operation of the enterprise may use an E-2 Visa. The investment must be in a real operating commercial enterprise and must not be marginal. For smaller companies, the investor must have control of the funds and the investment must be at risk in the commercial sense.

Filing E Applications

An applicant for an E Visa can apply directly at a US Consulate for a Visa, without waiting for USCIS pre-approval in the US. If the foreign national is in the US in another status, an application for change of status to E-1 or E-2 can be filed with the appropriate USCIS Regional Service Center.

Family Members

Immediate family members (spouses and children under the age of 21) may accompany the employee to the US, regardless of the nationality of the family member. The E Visa for immediate family members is generally granted for the same period as the E Visa holder, and must be extended accordingly. A spouse (not children) may apply for US employment authorization when he/she arrives in the US, and can work for any employer of his/her choosing, in any field.

E-3 Status- Professional Workers (Australia)

In May 2005 a new nonimmigrant visa category was created for Australian professionals seeking to work in the United States. The Act provides for 10,500 new visas per year for Australian nationals seeking temporary work in “specialty occupations”. These occupations are similar to the defined occupations already permitted for H-1B Visas.

The E-3 visa is only available to Australian nationals. The qualifications for an E-3 visa are similar to those required for an H-1B visa. The Australian national must hold at least the equivalent of a four-year US college or university degree in the field in which he/she will be working, and the position must normally require at least a Bachelor’s Degree as a minimum requirement to perform the job. The E-3 Visa must be sponsored by an employer in the US. The E-3 Visa is granted for 2 years and is renewable in 2 year increments, without any maximum limit (can be extended indefinitely). However, the US employer must pay the employee the prevailing wage, as determined by the US Department of Labor, of what a US worker would earn for a similar position in the same geographic location. The E-3, like the TN classification, is a temporary visa category, and the applicant must show that he/she does not intend to remain in the US permanently.

The E-3 Visa may be applied for directly at a US Consulate. A US employer may also file an E-3 petition for an eligible worker if he/she is already in the US on another temporary Visa.

E-3 Cap

The US government limits the number of new E-3 Visas to 10,500 per year (the government’s year runs from October 1 to September 30). Once this limit, or “cap”, is reached, an employer cannot employ a foreign national in E-3 status until the next fiscal year begins.

Family Members

E-3 dependant (E-3D) status is available to immediate family members (spouses and children under the age of 21, and they do not need to be Australian citizens) who wish to accompany the E-3 employee to the US. E-3D status is generally granted for the same period as the E-3, and must be extended accordingly. An E-3D spouse (not child) may apply for US employment authorization when he/she arrives in the US, and can work for any employer of his/her choosing, in any field.