The E-1 (Treaty Trader) or E-2 (Treaty Investor) Visa is available to a person who is a citizen of a country with which the US maintains a treaty of friendship, commerce and navigation, or other qualifying arrangement, and who will work for an entity in the US that is ultimately owned by a person or a company that holds the same citizenship. For example, Germans only qualify for E-1 or E-2 Visas for German owned companies, and Canadians only qualify for E-1 or E-2 Visas for Canadian owned companies. To qualify, there must be a substantial amount of trade of goods, services or technology, principally between the US and the treaty country (E-1), or there has been a substantial amount of capital invested in the US (E-2). The E Visa applies to the principal owner or investor, and to those in executive, supervisory/managerial, or essential employee positions. In order to qualify as an essential employee, the employee’s skills must be indispensable to the success of the enterprise – which generally means that skilled trades and unskilled workers do not qualify. Unlike the L-1 Visa, the E Visa does not require that the applicant have previously worked for a related company abroad. Unlike the H-1B Visa, the applicant does not necessarily require a bachelor degree in a related field.
For E-1 Visa holders, the item of trade, and title of that item, must pass from one party to the other in exchange for consideration. For E-2 Visa holders, 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.”
E Visas do not have a limit on the number of extensions, and can generally be extended as long as the qualifications for the company and foreign national continue to be met. The period of work authorization issued to the foreign national when he/she enters the US (I-94 card) is 2 years, although the actual Visa is normally granted for 5 years. Prior to the end of the 2 year period of work authorization, an application can be filed to a US Citizenship and Immigration Services (USCIS) Regional Service Center; or it can be extended by the E Visa holder leaving and returning to the US and obtaining an additional 2 years. The 2 year period of admission for E work authorization should be given, even if the E Visa expires in less than 2 years. In order to re-enter the US after foreign travel, the E Visa must be valid. Foreign nationals should be very careful if applying for a US Immigrant Visa (“green card”) while on an E Visa, as there may be periods of time where international travel may not be permitted.
Filing E-1/E-2 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 company has not yet applied for an E Visa, there is an initial delay of a few months for the application to be reviewed at the US Consulate outside the US. If the company already has an approved E Visa, then the foreign national applies directly at the US Consulate and accepts the first available appointment. 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.
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. All immediate family members can attend school, if they wish. Spouses can apply for a US social security number after entering the US, but children will have to apply for an ITIN with the US Internal Revenue Service. Spouses who plan to work in the US should apply for work authorization once they enter.
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 recognized for H-1B Visas.
The Australian citizen 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. Using experience to replace the foreign national’s missing years of university credit is permitted on a three to one rule (3 years of experience for each year of university education that is missing). The E-3 Visa must be sponsored by a US employer. The E-3 Visa is granted for 2 years and is renewable in 2 year increments, without any maximum limit (can be extended indefinitely). The US employer must pay the employee the prevailing wage, as determined by the US Department of Labor, which is the same that a US worker would earn for a similar position in the same geographic location. Foreign nationals should be very careful if applying for a US Immigrant Visa (“green card”) while on an E Visa, as there may be periods of time where international travel may not be permitted.
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. At this time, E-3 Visa petitions are not eligible for premium processing. In addition, E-3 Visa holders are authorized while an extension of status is pending, if the E-3 status has expired. While the E-3 is similar to an H-1B Visa, it does not allow for portability (cannot start to work while a change of employers application is pending). H-1B portability is discussed on the Clark Hill website.
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.
E-3 dependent (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. All immediate family members can attend school, if they wish. Spouses can apply for a US social security number after entering the US, but children will have to apply for an ITIN with the US Internal Revenue Service. Spouses who plan to work in the US should apply for work authorization once they enter.