U.S. immigration laws specifically authorize the issuance of E visas to nationals of a country that has qualifying treaty[i] of commerce and navigation with the United States. Such qualifying treaties may include treaties of Friendship, Commerce and Navigation (FCNs) and Bilateral Investment Treaties (BITs).
A BIT is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state. This type of investment is called Foreign Direct Investment (FDI). BITs acts as a tool in protecting the FDI in a volatile market. Especially, they protect foreign investments in light of the risks that foreign investors face in many parts of the world, including cancellation of concessions, leases, or licenses; expropriation of shares; windfall, royalty, and other taxes; exchange rate risks; prohibition on the repatriation of profits; political or court interference; environmental regulation and remediation responsibility; land rights issues; riots; and protests, to name but a few. Faced with such risks, and given the likelihood that local courts and laws may not provide a speedy, effective and unbiased means of resolving investment disputes, BITs provide foreign investors with an additional level of protection under international law.
There are two types of E visas: Treaty Trader visa (E-1) and Treaty Investor Visa (E-2). The E-1 visa is applicable to a treaty national entering the U.S. solely to carry on substantial trade, which is international in scope and principally between the U.S. and the foreign state. For E-1 visa, the treaty national must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
The E-2 visa applies to a treaty national [or an entity owned by the treaty national(s)] to develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital. For E-2 visa, if the applicant is not the principal investor, s/he must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.
There is no bright line test of what would constitute a “substantial” amount of capital. The U.S. State Department acknowledges that the costs of investing in a business can vary dramatically, depending on the nature of the business: many millions to buy an automobile factory; and only a relatively small sum to set up a consulting firm. Further, the general rule requires that over 50% of the total volume of the international trade[ii] conducted by the treaty trader regardless of location must be between the United States and the treaty country of the alien’s nationality.
For a business to qualify for Treaty Investor visa, apart from being a national of the treaty country, at least 50 percent of the business must be owned by person(s) with the treaty country’s nationality. Additionally, besides the requirement of investment being substantial, the investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
E visas have certain advantages over other nonimmigrant visas. Unlike the L-1 visa, the E visa categories do not require the setting up of a branch, subsidiary or parent in the U.S. of a foreign entity. The E visa category also has less government regulations compared to the H-1B visa category. There is no prevailing wage requirement, labor condition attestation, and posting and public access file requirements. Neither there is a cap on the initial grant of E visas nor cap on E visa extensions.
Both E-1 and E-2 visa holders are initially granted stay of