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E-1 And E-2 Visas: Investors And Traders By “Mark A. Ivener”


Under NAFTA, Canadian citizens can apply for E-visa status as traders and investors.

Eligibility

The E-visa can be used by companies owned by a single investor as well as by large multinational companies. It is also available to key Canadian personnel of companies that are Canadian owned within the requirements listed in sections 1 and 2 below.

The E-1 Visa

To qualify for an E-1 trader visa, a Canadian business person must be seeking entry to the United States to carry on substantial trade in goods or services in a capacity that is supervisory or executive or involves essential skills. E-1 Visas were previously restricted to a trade of goods and specific services, including banking, finance, and the airline industry. This limited definition of services has been greatly expanded under NAFTA so that trade can be in goods or services without specification or restriction.

The term ‘trade’ means the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include but are not limited to Banking, Insurance, Transportation, Communications and Data Processing, Advertising, Accounting, Design and Engineering, Management Consulting, Tourism, and Technology Transfer.

As a Canadian citizen, you may be issued a treaty trader (E-1) nonimmigrant visa if all of the following requirements are met:

  • You or your firm is Canadian (at least 50% of the company’s stock is owned by Canadians),
  • You enter the United States to carry on substantial trade (more than 50%) between your U.S. business and Canada; it does not matter if your Canadian Company is engaged primarily in trade with countries other than the United States.
  • The trade is already in existence at the time you apply for E-1 status
  • You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations.
  • You confirm you will leave the United States upon termination of this status

The E-2 Visa

To qualify for an E-2 Investor visa, the applicant must “develop and direct operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital. To get some more insight into the system, you can get in touch with Attorney Mark A. Ivener. As a Canadian citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met:

  • You or your firm are Canadian (at least 50% of the Company stock is owned by Canadians),
  • You or the firm for which you work will invest or have invested substantial capital (generally in excess of $100,000) which is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States. The term “substantial” means:
    1. The investment must be significantly proportional to the total investment (usually more than half of the value of the business), or
    2. An amount normally considered necessary to establish a new business.
  • You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations.
    1. An executive position provides the employee great authority to determine the policy of and direction for the business or a major component of the business. The executive functions must be the primary functions of the employee, and not just incidental or collateral to other duties.
    2. A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise’s operations or a major component of the enterprise. It does not involve the supervision of low-level employees. The supervisory element of the employee’s position must be a principal and primary function, and not an incidental or collateral function.
    3. The essential nature of an alien’s “special skills” is determined by assessing the degree of proven expertise of the alien in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the contemplated duties, and the salary the special expertise commands. The Consular office must be convinced that the nature of the prospective employment is such that the alien’s eventual replacement by a U.S. worker is not feasible or that the employer is making reasonable and good faith efforts to recruit and/or train U.S. workers to perform the job.
  • The investment is not marginal (not your sole means of support and/or the goal of the investment is to create jobs for U.S. citizens or permanent residents)
  • The investment enterprise actually exists or you are actively in the process of investing.
  • You confirm you will leave the United States upon termination of this status.

For more information on E-1 & E-2 Visas In The United States, a free initial consultation with Mark A. Ivener is your next best step. Get the information and legal answers you are seeking by calling (800) 251-8883 today.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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