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E visas for
treaty traders and investors
The basis
of this classification lies in treaties which were entered into, at least
in part, to enhance or facilitate economic and commercial interaction
between the United States and the treaty country.
Although this classification mandates compliance with a lengthy list of
requirements, many of these standards are subject to the exercise of a
great amount of judgment and discretion. In view of the judgmental nature
of this classification, consular officers are supposed to be flexible,
fair, and uniform in adjudicating E visa applications.
As in the case of any visa application, the burden of proof to establish
status rests with the alien. If the alien's qualification for E-1 or E-2
classification is uncertain, the consular officer may request whatever
documentation is needed to overcome that uncertainty.
Requirements for (E-1) Treaty Trader
In evaluating E-1 applications, consular officers must determine whether:
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The
requisite treaty exists
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The
individual and/or business possesses the nationality of the treaty
country
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The
activities constitute trade within the meaning of INA 101(a)(15)(E)
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Such
trade is substantial
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Such
trade is principally between the United States and the treaty country
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The
applicant, if an employee, is destined to an executive/supervisory
position or possesses skills essential to the firm's operations in the
United States; and
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The
applicant intends to depart the United States when the E-1 status
terminates.
Requirements for E-2 Treaty Investor
In evaluating E-2 applications, consular officers must determine whether
the:
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Requisite
treaty exists;
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Individual
and/or business possess the nationality of the treaty country;
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Applicant
has invested or is actively in the process of investing;
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Enterprise
is a real and operating commercial enterprise;
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Applicant's
investment is substantial;
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Investment
is more than a marginal one solely for earning a living;
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Applicant
is in a position to “develop and direct” the enterprise;
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Applicant,
if an employee, is destined to an executive/supervisory position or
possesses skills essential to the firm's operations in the United
States; and
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Applicant
intends to depart the United States when the E-2 statues terminates.
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