E Visa USA: Essential Guide to the E-1, E-2 & E-3 Visas

There are three categories of US E visas, providing temporary immigration routes for foreign traders, investors and Australian nationals respectively to come to the US for specific business and work-related purposes.

You would look at an E visa if you are an entrepreneur engaging in substantial trade with the USA, or an investor looking to develop and direct the operations of an enterprise in which you have invested or are in the process of investing a substantial amount of capital, or are an Australian national offering specialist skills within your profession.

In this guide, we summarise each of the E visa categories and provide an overview of the eligibility requirements you would need to meet for each category.

 

What are the US E Visas?

The Treaty Trader visa (E-1) and the Treaty Investor visa (E-2) are intended for citizens of countries with which the USA maintains a treaty of commerce and navigation.

The E-3 visa is for Australian nationals with a degree to work in a US-based speciality occupation role requiring a minimum degree-level education.

All are nonimmigrant visas and are therefore only temporary. Whilst an E visa USA can be renewed or extended, you must continue to meet all applicable requirements under the visa classification.

 

E-1 Treaty Trader visa

The E-1 visa allows individuals, or employees of businesses, to enter the USA for the purpose of carrying out international trade.

There are a number of criteria you must satisfy to be eligible for this type of E visa, not least that you must possess the nationality of a country with which the US maintains a treaty of commerce and navigation.

You must also be coming to the United States solely to carry on substantial trade between your treaty country and the USA or, alternatively, to work in a business carrying out substantial trade as an executive, supervisor, or essentially skilled employee.

To be “substantial” there must be numerous transactions establishing a continuing course of trade, based on an existing trading relationship. There is no set limit to the amount of trade that must take place, although greater emphasis is placed on the number of transactions over the total monetary value.

The definition of “trade” is not strict. It may apply to the trade of goods, moneys or services between the USA and the treaty country, so long as there is an actual traceable exchange of qualifying commodities.

The total volume of your international trade should also be principally between your treaty country and the USA, ie; over 50%.

If you are an employee seeking an E visa for the USA, you will need to show that you are at an executive or supervisory level, or that you have skills that are essential to the operation of the business.

Finally, whether you are applying as a trader or an employee, you will need to demonstrate that you intend to depart the U.S. when your E-1 status comes to an end.

 

E-2 Treaty Investor visa

The E-2 visa enables individuals who have significant funds to invest to come into the USA to develop and direct the business. Employees may also qualify for an E-2 visa.

Again there are a number of criteria you must satisfy to be eligible for this type of “E visa USA”, including that you must possess the nationality of a country with which the US maintains a treaty of commerce and navigation.

You must also be coming to the United States solely to develop and direct the operations of a legitimate enterprise in which you have invested, or are in the process of investing a substantial amount of capital – or that you intend to work in that enterprise as an executive, supervisor, or essentially skilled employee.

The investment must be more than a marginal enterprise solely for earning a living for you and your family. Further, under the “fifty percent rule”, you will need to show at least 50% ownership of the enterprise, or possession of operational control through, for example, a managerial position.

If you are an employee seeking an E visa for the USA, you will need to show that you are at an executive or supervisory level, or that you have skills that are essential to the operation of the business in the U.S.

Finally, whether you are applying as an investor or an employee, you will need to demonstrate that you intend to depart the U.S. when your E visa status comes to an end.

 

E-3 visa for Australian nationals

The E-3 visa allows qualifying Australian nationals to come to the US to live and work, and bring their spouse and children.

To be eligible, you must hold an undergraduate degree and the job you have been offered must also require a bachelor-level or higher qualification.

The E-3 is broadly similar to the H-1B visa, but it offers a significant number of advantages for Australian citizens, including lower application costs and significantly better odds of being granted the visa.

The main challenge with the E-3 application is satisfying the requirement that the US-based role qualifies as a ‘speciality occupation’. This is particularly uncertain given there is no definitive list of eligible roles and as new jobs continue to emerge in fields such as STEM.

 

Applying for an E visa for the USA

The process for applying for an E visa is different depending on whether you are an owner, ie; the treaty trader/investor, or an employee.

The Treaty trader and investor must first register their business with the E-Visa Unit. This is a three-stage process:

• Stage 1 – complete the online visa application form DS-160.
• Stage 2 – go to the Visa Appointment Service website, create an account and pay the application fee.
• Stage 3 – electronically submit your supporting documentation.

 
Upon receipt of your registration application, you will be sent a confirmation email. At this point, the E-Visa Unit will not accept any unsolicited additional documents, although additional documentation may be requested during the application review process.

The review time for each case is 30 days, and cases cannot be expedited. Once the application has been reviewed, the E-Visa Unit will contact you to arrange an interview date. You must attend an interview within 90 days of this initial notification, and cases will not be held longer than 90 days.

An employee of a registered business will need to make an appointment through the U.S. Visa Appointment Service. You will not need to submit any documents in advance, rather you will be required to present these on the day of interview.

In the event that your application for an E visa USA is successful, this will grant you a stay of up to 2 years. Provided the conditions are still met, the initial stay may be extended, and there is no limit to the number of extensions.

 

E visa application challenges

One of the main challenges when applying for the E-1 or E-2 visa is that many of the eligibility requirements are without fixed definitions. This results in a degree of subjectivity in decision-making, meaning it can be difficult to predetermine the outcome of an application.

By way of example, under the E-1 Treaty Trader visa, what constitutes “substantial trade” is not defined by statute. Similarly, under the E-2 Treaty Investor visa, the investment amount is again not statutorily defined. As a general guide, you will need a minimum of US$100,000 to invest, although in exceptional cases applications with investment amounts as low as US$50,000 will be considered depending on the nature of the enterprise in question.

The E visa application also demands detailed business and financial information, with extensive documentary evidence in support. For the E-1 visa, you will, for example, be required to provide documentation to evidence that trade has taken place over a period of time.

 

Need assistance?

The eligibility criteria and application process relating to an E visa USA can be complex, not least the nature and extent of the documentation required.

When making an application for an E visa USA, you should always seek legal advice from an immigration specialist. The potential consequences of your application being denied could be significant for the progress of your business plans, and in the case of the E-2 visa could result in loss of investment funds.

NNU Immigration can advise and guide you through your E visa application. We bring substantial experience of helping non-US nationals make the move to the US to drive forward their business plans and start the next exciting chapter with their families in the USA.

For advice about your US visa application, contact us.

This article does not constitute direct legal advice and is for informational purposes only.