E Visa Overview

The E visas are nonimmigrant (temporary) visas for citizens from certain foreign countries that have a treaty (international agreement) with the United States which allows them to manage or invest in a business within the United States, or work as an employee under certain professions in the United States.

E VISA CATEGORIES

There are six main sub-categories under the E visa:

E1 visa [Treaty Traders]: Persons who are foreign business owners that need to manage the operations of an existing business (that does mostly international trades between the United States and treaty country) in the United States.
E1 visa [Employee of Treaty Traders]: Persons who are employees of E1 visa treaty traders.
E1 Visa Taiwanese Representatives [TECRO]: Representatives of the Taipei Economic and Cultural Representative Office (TECRO) and their dependent family.
E2 visa [Treaty Investors]: Persons who are foreign business investors that have invested or is actively in the process of investing a substantial amount of money in a U.S. business and will only be staying in the United States to direct and develop the business. The U.S. business can be a start-up company.
E2 visa [Employee of Treaty Investors]: Persons who are employees of E2 visa treaty investors.
E3 visa [Australian Specialty Occupation Professionals]: Persons who are Australian nationals coming to the United States to work in a specialty occupation (that requires at least a Bachelor’s degree).

E VISA OVERVIEW

The E visas are nonimmigrant (temporary) visas for persons from certain foreign countries that have signed treaty agreements with the United States. The treaties that the E visas are generally based on are the Treaties of Friendship, Commerce and Navigation (FCNs), Bilateral Investment Treaties (BIT), and the Free Trade Agreements (NAFTA/Fast Track).

The E visas are generally divided into 3 types: (1) businesses with commercial activities involving the United States (E1 visa treaty trader and E2 visa treaty investor), (2) professionals from Australia working as an employee in the United States (E3 visa), and (3) Taiwanese representatives of the Taipei Economic and Cultural Representative Office (special E1 visa).

E1 Visa (Treaty Trader & Their Employees)

The E1 visa is for foreign business owners (from a treaty country) who need to enter the United States to manage their business’s international trade operations in the United States. The business owner’s (treaty trader’s) business must be involved in continuous and sizable international commercial transactions between the United States and the treaty country that the business owner is from.

The international exchanges of the items of trade should typically be done over a period of time and the volume of the international trade between the United States and the business owner’s treaty country must be over 50% of the business’s total volume of international trade. For example, a qualified E1 visa business may be a business that consists of 80% of domestic business in Taiwan and 20% of business in international trade with at least 50% of that 20% international trade done between the United States and Taiwan.

The E1 visa also allows the foreign business owner (treaty trader) to bring their foreign employees to the United States to help assist them in managing the business operations in the United States. The foreign employees under the E1 visa can be an executive, a supervisor, or a person with specialized skills that make them essential in successfully running the business operations efficiently in the United States.

E2 Visa (Treaty Investor & Their Employees)

The E2 visa is for foreign investors (from a treaty country) who have investments in a U.S. business and need to enter the United States to manage those business investments. The U.S. business under the E2 visa must be a real business that is actively operating to provide goods or services for earning a profit. This means that the U.S. business under the E2 visa cannot be a shell company or an idle speculative investment that is held for potential appreciations in value. For example, a U.S. business that holds stocks or undeveloped land not intended to be actively used commercially by the business investor usually will not qualify under the E2 visa due to its passive nature. Non-profit organizations also cannot be qualified as the U.S. business due to the for-profit requirement under the E2 visa.

The amount of capital put into the U.S. business must be substantial to show that the business investor is truly investing in a U.S. business and is financially committed in making sure that the U.S. business will be successful. The U.S. business under the E2 visa also cannot be a marginal enterprise which means that the U.S. business must be generating income that is more than the minimal amount to support the living costs of the business owner and their family.

Start-ups companies (newly started companies) are allowed under the E2 visa applications (treaty investor) unlike in the E1 visas (treaty trader) where the treaty traders are generally required to show that they already have an established business involved in international trade for a period of time before their E1 visa application.

The business investor can also bring their foreign employees (who must be from the same treaty country as them) to the United States under the E2 visa to help run the operations of the U.S. business. The employees of the E2 visa business investor can include executives, supervisors, or staff with special skills that are essential to successfully run the operations of the U.S. business.

E3 Visa (Australian Professionals in Specialty Occupations)

The E3 visa is for Australian citizens to work in the United States in a specialty occupation. Specialty occupations under the E3 visa require at least a Bachelor’s degree to enter the occupation that involves theoretical and practical application of a body of highly specialized knowledge.

Special TECRO E1 Visa (Taiwanese Representatives)

The E1 visa can also be used by Taiwanese representatives (and their dependent family) who are employed by the Taipei Economic and Cultural Representative Office (TECRO). The dependent immediate family members of the Taiwanese TECRO employee must be habitually living in the same household.

Immediate family members of the Taiwanese TECRO employee can include:

Spouse
Unmarried children under 21 years old (minors)
Unmarried adult children under 23 years old who are full-time students at post-secondary universities
Unmarried adult children under 25 years old who are full-time students at post-secondary universities if a formal bilateral employment agreement that permits them to be employed in the United States was signed before November 21, 1988 and does not specify 23 years old as the maximum age for their employment
Unmarried children who are mentally or physically disabled to the extent that they cannot adequately take care of themselves or cannot establish, reestablish or maintain their own households

The spouse or unmarried adult child of the Taiwanese TECRO employee can legally work in the United States with an employment authorization document (EAD, Form I-765).

E Visa Family Members

Dependent family members (spouse and unmarried children under 21 years old) of E visa holders are allowed to stay in the United States under the E visa status and do not need to have the same nationalities as the principal E visa holder. The E visa spouse (not the E visa child) can legally work in the United States with an employment authorization document (EAD, Form I-765). The unmarried adult children of Taiwanese TECRO employees can also legally work in the United States with an employment authorization document (EAD, Form I-765).

E Visa Treaty Countries

The E1 visa and E2 visa include different treaty countries, and the E3 visa is only for Australians.

E1 Visa (Treaty Trader)	E2 Visa (Treaty Investor)
Asia
· Republic of China (Taiwan) · Japan · South Korea · Philippines · Singapore · Thailand · Brunei	· Republic of China (Taiwan) · Japan · South Korea · Kyrgyzstan · Mongolia · Philippines · Singapore · Sri Lanka · Thailand · Bangladesh · Kazakhstan
North America
· Canada · Mexico	· Canada · Mexico
South America
· Argentina · Bolivia · Chile · Colombia · Paraguay · Suriname	· Argentina · Bolivia · Chile · Colombia · Ecuador · Paraguay · Suriname
Central America
· Costa Rica · Honduras	· Costa Rica · Honduras · Panama
Africa
· Ethiopia · Liberia · Togo	· Cameroon · Congo (Brazzaville) · Congo (Kinshasa) · Liberia · Morocco · Egypt · Ethiopia · Senegal · Togo · Tunisia
Oceania
· Australia (available for E3 visa as well) · New Zealand	· Australia (available for E3 visa as well) · New Zealand
Middle East
· Israel · Jordan · Oman · Pakistan · Turkey	· Bahrain · Israel · Jordan · Oman · Pakistan · Turkey · Georgia
Europe
· Austria · Belgium · Bosnia and Herzegovina · Croatia · Denmark · Estonia · Finland · France · Germany · Greece · Ireland · Italy · Latvia · Luxembourg · Macedonia · Netherlands · Norway · Poland · Serbia · Slovenia · Spain · Sweden · Switzerland · United Kingdom · Kosovo · Montenegro · Yugoslavia	· Austria · Albania · Armenia · Azerbaijan · Belgium · Bosnia and Herzegovina · Bulgaria · Croatia · Czech Republic · Denmark · Estonia · Finland · France · Germany · Ireland · Italy · Kosovo · Latvia · Lithuania · Luxembourg · Macedonia · Moldova · Montenegro · Netherlands · Norway · Poland · Romania · Serbia · Slovak Republic · Slovenia · Spain · Sweden · Switzerland · Ukraine · United Kingdom · Yugoslavia
Caribbean
· None	· Grenada · Jamaica · Trinidad & Tobago

＊The U.S. Department of States updates the most current list of E1 visa and E2 visa treaty countries.

E Visa Period of Stay & Extension (Renewal)

The E visa status can be granted an initial period of stay up to 2 years (the E visa itself may be granted up to 5 years depending on the reciprocal country) and the renewal (extensions of stay) can be granted for up to an additional 2 years each time. There is no maximum limit on how many times the E visa can be renewed and an automatic two-year period of readmission is generally granted when the E visa holder returns to the United States after traveling overseas. The automatic 2-year renewals do not apply to the family members of the E visa holder unless they were returning to the United States with the principal E visa holder (i.e., the E1 visa treaty trader, E2 visa treaty investor, E3 visa professional worker).

＊The period of stay that can be granted for the E visa varies among different treaty countries. For example, under E2 visas, Canadians can be granted a period of stay for up to 2 years whereas Mexicans can be granted a period of stay for up to 1 year.

E visa Grace Period

The E visa holder is allowed to enter the United States 10 days before the start date and stay an additional 10 days after the end date. However, no work can be done in those additional 20 days. There is also a 60-day grace period of authorized stay in the United States if the person’s E visa is terminated earlier than their visa status end date. Working is also not allowed during the 60-day grace period since its purpose is for the person to look for other employment or wrap up their affairs in the United States.

E Visa General Process

There are 3 main steps in the general process of obtaining an E visa:

Step 1: Ownership of Business the does International Trade with U.S. (E1 Visa), Investment in U.S. Business (E2 Visa), or Work Agreement with Sponsoring Employer (E3 Visa)

There are different requirements under the three main subcategories of the E visas, however, the E visas are all generally processed at the U.S. consulate or embassy overseas and require that the foreign worker be from a certain treaty country.

Ownership of Business the does International Trade with U.S. (E1 Visa)

The foreign business owner under the E1 visa should have a business that already has a record of doing continuous and sizable international commercial transactions between the United States and the treaty country that they are from for a period of time. The international trade between those 2 countries must be over 50% of the business’s total volume of international trade under the E1 visa.

The employees who are coming to the United States to assist the foreign business owner under the E1 visa must show that they are qualified as an executive, a supervisor, or a person with specialized knowledge and skills that are essential in successfully running the business operation efficiently.

Investment in U.S. Business (E2 Visa)

The foreign business investor under the E2 visa must have invested or is actively in the process of investing in a U.S. business. The amount of money invested into the U.S. business must be substantial, at-risk commercially (which means the amount invested may be lost if the business fails), and from a lawful source (must show that the money invested is not earned from illegal activities) under the E2 visa. The U.S. business must also show that it currently or will be able in the future to generate an income that is over the cost of the minimal living costs of the E2 visa treaty investor and their family.

The employees who are coming to the United States to assist the foreign business investor under the E2 visa must show that they are qualified as an executive, a supervisor, or a person with specialized knowledge and skills that are essential in successfully running the U.S. business operation efficiently.

Work Agreement with Sponsoring Employer (E3 Visa)

The Australian E3 visa worker must have a contract or agreement with a sponsoring U.S. employer for temporary work in a specialty occupation in the United States. The E3 visa Australian worker cannot file (start and pay) for an E3 visa petition by themselves.

Step 2: Filing the E Visa Petition (Form I-129 or DS-156E) and/or U.S. Business Registration

In most cases, the E visas petitions are adjudicated at the U.S. consulate or embassy during the visa application (DS-160) interview. However, E visas petitions (Form I-129) can still be filed with the USCIS.

For first time E1 visas and E2 visas, the U.S. business would usually need to be registered with the U.S. consulate or embassy for evaluation and a separate interview appointment at the U.S. consulate or embassy may be required to successfully register the U.S. business.

Step 3: Consular Processing or Change of Status (E Visa Status)

After the E visa petition is approved by the USCIS or at the U.S. consulate or embassy, the person would need to change into their E visa status. If the E visa petition is approved by the USCIS, the person can either do a change of status if they are already in the United States or go through consular processing at the U.S. consulate or embassy overseas (usually in their home country) and then physically enter the United States after being inspected and admitted by the CBP officer at the border (e.g., the airport). If the E visa petition is approved at the U.S. consulate or embassy overseas (most cases), the person changes into their E visa status by physically entering the United States after being inspected and admitted by the CBP officer at the border (e.g., the airport).

Change of Status & Consular Processing

Change of status is usually for a person who is already in the United States with another valid nonimmigrant visa status and has maintained a lawful visa status throughout their time in the United States. On the other hand, consular processing is for a person who lives outside the United States or for a person who is ineligible to change their status in the United States due to noncompliance of U.S. immigration law (e.g., overstayed on their previous visa status, worked when they did not have valid U.S. work authorization, the visa status they used to enter the United States does not allow them to change into another type of visa status, etc.)

Person Outside U.S. (or Person Ineligible for Change of Status)

For a person who is residing overseas (outside the United States) or a person who is ineligible for change of status with the E visa petition (Form I-129), consular processing must be done to obtain the E visa status. Consular processing involves the person attending an in-person interview at the U.S. consulate or embassy usually in the person’s home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.”

After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport) which means that the person would have to physically enter the United States as the final step for the E visa status to be activated.

Person Residing in the U.S. (Maintained Lawful Visa Status)

For a person who is already in the United States with another valid nonimmigrant visa, there are usually two options available to obtain the E visa status:

(1) Change of Status: this is the more commonly chosen option where the person states that they would like to change their status without leaving the United States in their E visa petition (Form I-129). If the person is eligible (no violations of U.S. immigration laws), then their nonimmigrant visa status will be changed upon the approved employment start date listed in the E visa petition. In cases where the person’s change of status request is denied or the person needs to change it into consular processing, an application for action on an approved application or petition (Form I-824) may be required.

(2) Consular Processing: this must be chosen if a person cannot show that they have maintained lawful visa status in the United States or for any other reasons such as the person needs to travel internationally before the E visa petition is approved.

E Visa Processing Time & Premium Processing (Expedited Service)

The E1 visa and E2 visa for treaty business owners and investors have different processing times than the E3 visa for Australian professional workers. Factors that influence the E visa application processing time usually include but are not limited to if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center and the U.S. consulate or embassy.

E1 visa & E2 visa Processing Time for Treaty Business Owners or Treaty Investors

The total time an E1 visa or an E2 visa takes is consisted of the processing time for the (1) U.S. business registration with the U.S. consulate or embassy (if first E1 visa or E2 visa), (2) E1 visa or E2 visa application (Form I-129) with USCIS or E1 visa or E2 visa application (Form DS-156E) with the U.S. consulate or embassy and/or the (3) visa application (DS-160) at a U.S. consulate or embassy overseas if the person is not already in the United States or is ineligible to do a change of status within the United States.

In most cases, it is preferable to file the E1 visa or E2 visa application with the U.S. consulate or embassy and not with the USCIS. The processing time of applying for an E1 visa or E2 visa at the U.S. consulate or embassy overseas depends on the availability of appointments at that specific U.S. consulate or embassy which can range from days to months.

A rough estimate for the Form I-129 petition for the E1 visa or E2 visa is around 4 to 6 months. However, a 15-day premium processing (Form I-907) is available for the Form I-129 part of the E1 visa or E2 visa petition.

E3 Visa Petition Processing Time for Australian Professional Workers

The total time an E3 visa takes is consisted of the processing time for the (1) E3 visa petition (Form I-129) with the USCIS and/or the (2) visa application (DS-160) at a U.S. consulate or embassy overseas if the person is not already in the United States or is ineligible to do a change of status within the United States.

A rough estimate for the Form I-129 for the E3 visa with the USCIS is around 4 to 6 months and premium processing is not available for E3 visas. Typically, it is faster to do consular processing for the E3 visa which is applying for the E3 visa at a U.S. consulate or embassy overseas (typically in Australia). The processing time of applying for an E3 visa at the U.S. consulate or embassy overseas depends on the availability of appointments at that specific U.S. consulate or embassy which can range from days to months.

Premium Processing for Form I-129 (Expedited Service)

A rough estimate for the Form I-129 petition for the E1 visa or an E2 visa is around 4 to 6 months. However, a 15-day premium processing (Form I-907) is available for the Form I-129 part of the E1 visa or E2 visa petition (not available for E3 visas). Premium processing is an optional expedited service where the USCIS guarantees that the case will be processed within 15 calendar days (not business days). When a notice of intent to deny (NOID) or a request for evidence (RFE) is issued, a new 15 calendar days will start when the USCIS receives a response from the applicant. If the USCIS fails to process within the time frame, a refund of the service fee will be given and the case will continue to be expedited. Please note that USCIS’s guaranteed response may be an approval notice, denial notice, notice of intent to deny (NOID), request for evidence (RFE), or open an investigation for fraud or misrepresentation.

The current premium processing fee for the E1 visa or E2 visa is $2500 USD and it can be requested when the original petition is submitted to the USCIS or an upgrade to premium processing can be done when the case is pending.

E Visa Limited Dual Intent

Dual intent visas allow the foreign person to have both an intent to temporarily stay in the United States and an intent to permanently stay in the United States. The intention to permanently stay in the United States can be shown when the foreign person has a pending green card petition with the USCIS or an approved PERM labor certification from the U.S. Department of Labor.

The E visas are limited dual intent visas which means that the timing of any green card application or petition must be carefully strategized. Having dual intention (which is possessing an immigrant intent and a nonimmigrant intent at the same time) is very tricky for E visa holders because the U.S. Department of State (i.e., U.S. consulate or embassies) does not recognize it as a dual intent visa but the U.S. Citizenship and Immigration Service (“USCIS”) in practice does treat it as a dual intent visa limited with certain restrictions.

Due to the situation described above (i.e., the different beliefs that the U.S. consulate or embassy and the USCIS hold on the dual intent of the E visa), showing an immigrant intent can cause issues with the E2 visa holder’s eligibility to renew (extend) their visa or apply for other nonimmigrant (temporary) visas to travel to the United States. For example, an E visa renewal (extension) will likely be denied if an E visa holder who has a pending green card petition (which shows immigrant intent) applies for it at the U.S. consulate or embassy (i.e., part of the Department of State), whereas it will likely be approved if it was applied for with the USCIS.

Another issue that may arise when the E visa holder shows an immigrant intent is when they return to the United States after traveling internationally. For example, an E visa holder who has a pending green card application may be denied admission into the United States by the CBP officers at the border (e.g., airport) because the CBP is a part of the U.S. Department of State that believes the E visa is not a dual intent visa (i.e., cannot have an immigrant intent) and that having a pending green card application shows that the person has an intention of staying in the United States permanently. So, unlike visas (e.g., H1 visa, L1 visa) that allow dual intention, E visa holders should be more cautious when deciding whether they must travel internationally after they file for a green card (immigrant visa) petition.

CONCLUSION

The E visas are for foreign persons from certain treaty countries. The E1 visas are for foreign business owners (from a qualified treaty country) who are doing business that mostly involves international trade between the United States and the treaty country that they are from. The E2 visas are for foreign business investors (from a qualified treaty country) who are actively in the process of investing or have already invested in a U.S. business. Both the E1 visa and the E2 visa allows the business owner or investor to come to the United States to manage their business operations or business investments. The E3 visas are for Australian professionals who are sponsored by a U.S. employer to work in a specialized occupation that requires at least a Bachelor’s degree.

HAVE A E VISA IMMIGRATION QUESTION? CONTACT US

If you have an E work visa (Treaty Trader or Treaty Investor and their Employees, Australian Professionals, Taiwanese TECRO employees) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.

How we can help?

Kylie Huang Law’s immigration attorney will help identify whether the E visa is the appropriate nonimmigrant visa category for the client’s (or the client’s beneficiary’s) professional background and if there are other visa options for the client (or the client’s beneficiary). We will work closely with our client to prepare a convincing case for their (or it’s) E visa petition and we will also strategize on how the E visa petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an E visa petition due to the complexities in the immigration process and visa requirements.

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