E-1 Treaty Trader Visa Requirements

Posted November 25, 2011

The Immigration and Nationality Act (INA) provides non-immigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation, and who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country.  8 U.S.C. § 1101(a)(15)(E)

The principle legal requirements are:

  • The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country;
  • The international trade must be substantial in the sense that there is a sizable and continuing volume of trade;
  • The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality;
  • Trade means the international exchange of goods, services, and technology;
  • Title of the trade items must pass from one party to the other outside of the U.S.; and
  • The applicant must be 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.

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Late to Extend or Change Non-Immigrant Status?

Posted November 16, 2011

Suppose, through inadvertence or otherwise, you have missed the deadline to apply for an extension or change of your non-immigrant status while physically present in the United States.  Must you leave the country?  Are there any circumstances under which the failure to timely apply for an extension or change of non-immigrant status may be excused?

Yes, but under very limited circumstances.  According to the law, the failure to timely file applications for an extension of non-immigrant status or a change of non-immigrant status in the U.S. may be excused by a USCIS  District Director if circumstances warrant.  8 C.F.R. §248.1(b) and §214.(1)(c)(4).  Here is the regulation:

8 CFR §248.1(b)

b)  Timely filing and maintenance of status.  A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service, and without separate application, where it is demonstrated at the time of filing that:

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E-2 Treaty Investor Visas

Posted November 11, 2011

I.N.A. §101(a)(15)(E)

E-2 Treaty Investor visas are available to persons entering the United States “solely to develop and direct the operations of an enterprise in which s/he has invested, or is actively in the process of investing, a substantial amount of capital.”  At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the U.S. and the home country have a ratified bilateral investment treaty (see the current list of E-1 and E-2 treaty signatories here).  Employees of the enterprise who are working in management, executive or “essential” positions are also eligible for E-2 visas if the ownership breakdown meets the above test.

Some of the more important requirements for an E-2 visa include the following:

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Legal Requirements for Issuance of a B-1/B-2 ‘Visitor’ Visa

Posted November 11, 2011

Under section 214(b) of the INA, “every alien (other than a nonimmigrant described in subparagraph (h)(i) or (L) of section 101(a)(15) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a nonimmigrant visa, and the immigration officers, at the time of application for admission, that he is entitled to nonimmigrant status under section 101(a)(15).”

How does one prove “bona fide non-immigrant intent”?

Because there are such a high number of applications for short-term business and tourist visas in comparison to the rest of non-immigrant visa categories, the issue of immigrant intent is more closely scrutinized for B visa applicants.  The State Department has specified five general requirements for issuance of a B visa to a foreign national.  These requirements are rarely waived:

  1. The alien is entering the U.S. for a limited duration;
  2. The alien intends to depart the U.S. at the expiration of his or her stay;
  3. While in the U.S., the alien maintains a foreign residence which he or she has no intention of abandoning;
  4. The alien has adequate financial arrangements to travel to, travel within, and depart from the U.S.;
  5. The alien will only engage in limited activities relating to business or pleasure.

For typical employees of established and large or recognizable companies who intend to engage in productive business activities, a letter from the company setting forth a legitimate business reason, setting specific dates during which business will be conducted, and including supporting documentation of the trip arrangements, will usually adequately demonstrate bona fide non-immigrant intent.  Generally, detailed statements from large employers (called ‘affirmations’) are sufficient to show bona fide non-immigrant intent.

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