Joseph Grasmick (l) and Henry Chang (r)
This page is a joint page of the Law Office of Joseph C. Grasmick, and Chang & Boos, Attorneys-at-Law. This article on E visa processing for Canadians was provided by Mr. Henry J. Chang.
The Immigration and Nationality Act gives special status to citizens of countries which have entered into "treaties of commerce and navigation" or "bilateral investment treaties" with the United States. As a result of the North American Free Trade Agreement, Canadian citizens are eligible for E status.
Where to Apply for an E Visa
While Canadians are visa-exempt for most categories, §212.1(l) of the immigration regulations ("8 CFR") specifically requires any alien seeking admission as a treaty trader or investor under the provisions of NAFTA must be in possession of a nonimmigrant visa issued by an American consular officer classifying the alien under that section. As of March 1, 1996, the U.S. consulate in Toronto, Ontario is the only U.S. consulate in Canada issuing E visas.
If the Canadian is already in the United States under another category, it is also possible to apply for a change of status to E from within the United States. However, if the Canadian leaves the United States and attempts to re-enter, he will still need an E visa issued by a U.S. consulate abroad.
Consulates generally believe that they should be adjudicating E visa cases rather than the INS so they will consider the case themselves before issuing a visa. It is therefore recommended that Canadians seeking E classification apply at a consulate, even if they are eligible for a change of status.
Only citizens or nationals of a treaty country may apply for an E visa. Therefore, Canadian landed immigrants are not eligible for E-1 or E-2 visas unless their country of citizenship has entered into its own treaty of commerce and navigation or bilateral investment treaty with the United States. The U.S. consulate in Toronto will entertain an E visa application pursuant to a treaty other than NAFTA provided that the applicant is also a resident of Canada.
The citizenship or nationality of an individual is determined by his or her country of citizenship. In the case of a corporation, its nationality is determined by examining its stock ownership. The nationality of such a corporation is the nationality of the individuals owning at least 50% of the corporation's stock. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the nationality of the corporation is presumed to be the location of the exchange. However, where a corporation's stock is exchanged in more than one country, then the applicant must satisfy the consular officer by the best evidence available that the business meets the nationality requirement.
E-1 Treaty Trader Visa -- Basic Requirements
The E-1 treaty trader visa is available to enterprises engaged in trade with the United States. The trade must be substantial, principally between the United States and the treaty country, and the employee or principal trader entering the United States must serve the company in either a managerial, executive or specialized knowledge capacity. The word "Trade" is defined as including the exchange, purchase or sale of goods having intrinsic value and/or services. Trading in services is permissible, but establishing the existence of such trade through documentary evidence is obviously more difficult. For E-1 purposes, the word "substantial" is defined as meaning where at least 51% of the total volume of the foreign business's trade is between the U.S. and the treaty country. The treaty country must show a continued course of trade so trade must have already commenced prior to the alien applying for E status. However, the total income earned from such trade does not have to be substantial as long as the volume of trade itself is substantial.
E-2 treaty Investor Visa -- Basic Requirements
The E-2 treaty investor visa is available to nationals of the treaty country who are engaing in investment in the United States. The investor must show that he or she has either made a substantial investment or is actively in the process of making a substantial investment in the U.S. business. The funds must be committed and personally at risk in order to qualify and the business must be an active and substantial investment. Holding stocks and undeveloped land would not qualify as an active investment as they do not involve the operation of an active business.
In order for an investment to be substantial, it must be proportional to the total value of the business. For example, if the total value of the business is small, the E-2 investment must be a greater proportion of that amount. For new businesses, the investment must be the amount normally considered necessary to establish a viable business.
Although proportionality is specifically referred to as the test for substantiality in the Foreign Affairs Manual (the manual referred to by U.S. consulates), in practice the quantum of the investment is also considered. However, the Foreign Affairs Manual does not state a minimum required investment for E-2 eligibility.
In the past, the U.S. consulate in Toronto has issued E-2 visas for cases involving an investment of $50,000.00US. In a case involving $50,000.00, it is possible to argue substantiality since the Foreign Affairs Manual specifically refers to an investment of $50,000.00 requiring a percentage of investment approaching 90-100% of the total value of the business. However, new rules proposed by the Department of State will delete this example from the Foreign Affairs Manual. Although they are not yet finalized, consular officers may already be applying them in practice. The smallest investment example contained in the proposed rules refers to an investment of $100,000.00US. Nevertheless, the author believes that an investment between $50,000.00US and $100,000.00US will still be approvable at the US consulate in Toronto even if the proposed rules are implemented.
The principal investor who enters the United States must have control over the business and be responsible for the development and direction of the investment. In the case of an employee of the business, the employee must be either a manager/executive or an employee possessing specialized knowledge which is essential to the operation of the business.
Duration of Stay and Extensions
E visas are generally valid for a period of five years or less. The maximum visa duration permitted will depend upon the nationality of the alien. The maximum period allowed for each nationality can be determined by referring to the Reciprocity Schedules contained in the FAM. For example, the maximum duration of a treaty trader or investor visa for Canadian citizens is 60 months, of five years. It is important to remember that a consular officer may choose to grant an E visa for a shorter period of time.
Despite the fact that E visas may be valid for up to five years, pursuant to 8 CFR §214.2(e)(1), treaty traders and investors may not be admitted for an initial period of more than one year and may not be granted extensions of stay in increments of more than two years. Therefore, an alien in treaty trader or investor status with a five year visa will initially be admitted for only one year. He or she can apply for an extension of stay of two years or simply leave the United States and seek reentry with the valid visa. In the latter situation, the INS will again grant the alien a one year period of stay.
There is no limit on the number of extensions allowed under this category.
E-2 Applications made at the U.S. consulate in Toronto are processed in about three weeks. Although personal interviews are common for E visa applications in certain countries, in general, the U.S. consulate in Toronto will waive the requirement of a personal interview and E visa applications may be processed by mail.
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