Guide to U.S. Immigration

3. The E Visa Category

The E visa category is a temporary working visa for business personnel working for companies that are engaged in substantial trade between Japan and the U.S. (Treaty Trader) or a foreign company that has made a substantial investment in the U.S. (Treaty Investor). The visa is based upon the existing Treaty of Navigation and Commerce between the countries.

E-1 Treaty Trader Visa

The requirements of an E-1 visa are well known to many Japanese Managers. The U.S. company must be owned in the majority (over 50%) by Japanese nationals or a Japanese parent company. The proposed employee must be a Japanese National and the majority of trade of the U.S. company (Japanese subsidiary company) must be between Japan and the U.S. Generally, the firms qualifying for an E-1 visa are import-export companies (trading companies), transportation, tourism, computer services, automotive importers and parts companies, communications, international banking, and insurance companies.

What is "substantial trade"? There is no set dollar amount of trade required to qualify for an E-1 visa. This is a decision made by a U.S. Consular Officer based upon the information and documentation presented to him and varies from case to case. It also depends on the kind of company applying for a visa.

U.S. companies (Japanese subsidiary companies) that do qualify for an E-1 visa may wonder how many visas they can obtain. Again there is no specific rule but generally it is determined by the size of the company in the U.S. (sales) and the number of American employees hired. The author represents a large international Japanese company that has about 50 E-1 visas and employs about 900 American workers. However, the author represents another company that has only about 50 employees and that company has about 10 E-1 visa holders. The number of E-1 visas issued depends on the circumstances of each company.

Two types of employees may work for the US company (Japanese subsidiary company). One type is Executive or Managerial personnel. These, of course, are the top executive staff or second level department managers. The other type is personnel with "essential skills". These are personnel with special knowledge of a company's product, marketing strategy, unique international system of operations, or other knowledge not readily available. For example, specialized engineers (such as automotive specialty engineers for a certain make of Japanese made automobile) can qualify for an E-1 visa. As discussed later, engineering staff can in some cases also qualify for an H-1 visa or an L-1 visa.

A good guideline for the definitions of Executive, Managerial and specialized knowledge can be found in the discussion in this booklet concerning L-1 visas. Those definitions are similar to the definitions of the E-1 visa, However, the "essential skills" category of the E-1 visa and the "specialized knowledge" category of the L-1 visa are not exactly the same.

The E-1 visa is issued at the American Embassy for an initial period of 4-5 years. Upon entry to the U.S., the alien is given a one or two years stay (I-94) and can obtain yearly extensions.

The E-2 Visa Treaty Investor

The E-2 visa category requires that a substantial investment be made in the US by foreign investors. There is no trade requirement. The owners (Japanese nationals or Japanese parent company) must be of the same nationality as the managers in the US sent to operate the enterprise.

There is no exact definition of the term "substantial investment". It will differ depending upon the type of company involved (restaurant versus an clothing factory). The amount of capital to start an auto parts factory would be different from the capital in starting a restaurant. As a very rough guide, it is prudent to invest more than $500,000-$1,000,000 although E-2 visas can be issued to investors investing smaller amounts depending on the circumstances.

The E-2 company may apply for an E-2 visa for aliens that will be its management and executive personnel and those who have "essential skills". The number of personnel issued E-2 visas is determined basically the same way as the E-1. Also the E-2 investors (Japanese Investors) must own a majority interest (over 50%) in the enterprise.

An example of an E-2 company would be an international construction company. Since it is not involved in trade, it cannot qualify for an E-1 visa. But since it has invested substantial capital in the U.S. used in its business, it will qualify for an E-2 visa company. A Japanese company that manufactures a product (such as Televisions, Auto Parts, etc.) and has invested substantial sums in building its manufacturing facility will qualify as an E-2 visa company.

Passive investments and marginal investments will not qualify a company for an E-2 visa. An example of a passive investment would be an investment in stocks or bonds or an apartment building where the investor takes no active part in the management of the investment. However the purchase of a hotel or motel where the investor is "active" in the management is a valid investment which would qualify a company to apply for a E-2 visa. A marginal investment is one that is undercapitalized so that it cannot succeed or one in which the investor must earn his total livelihood. In a situation where it is hard to determine if the investment is marginal, the fact that the enterprise will employ U.S. workers is relevant.

If an alien is granted an E-1 or E-2 visa, his spouse and children under 21 years old, can accompany the alien in the U.S.