Treaty Trader & Treaty Investor Visas (E Visa)
Consider the following: "My company set up a corporation in the United States in order to dispatch employees there and grow their business." Or, "I was ordered to work at the U.S. subsidiary for one month."
In this sort of situation, what sort of options do you think of that allow you (or your employees) to work in the United States?
Nationals of countries subject to the U.S. visa waiver program (VWP) do not have a particular need to obtain a visa when traveling to the U.S. Due to this, many Japanese people who are eligible for the VWP are unfamiliar with the many different types of U.S. visas and which one is appropriate for their situation. One of the work visas is the E visa. The E visa is for the purpose of trade and investment between Japan and the U.S, and so the role of the E visa is the promotion of such.
For example, E visas can be used when employees of a Japanese company are stationed at a U.S. subsidiary or affiliate company, or when an entrepreneur starts and operates a company in the U.S.
For foreign nationals, a work visa is required in order to travel and work in the U.S., but the visa that should be considered the highest priority at the outset is the E visa. E visas include the trade (E-1) and investment (E-2) visas, both of which need applicants to meet the managerial or professional requirements that include the expertise needed to operate the company. This visa is not applicable to employees at a general business level.
The E visa can be obtained by a national of a country that has a trade agreement with the United States. Japanese nationals can obtain the E visa under the United States-Japan Treaty of Friendship, Commerce and Navigation. The issuing of this visa is unlikely to be influenced by the policies of the current U.S. administration due to the protection of the treaty.
Another question frequently asked by companies that are considering sending employees to a U.S. subsidiary is, "How is the E visa different from an L (intracompany transfer) visa?" The L visa requires a U.S. corporation to act as Petitioner and requires applying directly to the United States Citizenship and Immigration Services (USCIS). E visas, however, only require applying to the U.S. Embassy (or Consulate) in Japan, making it a convenient visa for business as long as the E visa company registration is complete.
Japan has many business transactions with the United States and is the country with the largest number of E-2 visas issued by country share, accounting for 30% of the total number of E-2 visas issued. On the other hand, there is a tendency with L visas to reject visa applications for applicants who do not have subordinates, such as middle management and other professionals. Therefore, L visa applications should be made carefully.
The U.S. Embassy and Consulates focus part of their examination on whether there is "a considerable amount of trade activity carried out" for E-1 visa applications, and if there is "a considerable amount of investment carried out" for E-2 visas. For E-2 visa renewals at small and medium corporations, it is the unfortunate reality that some are refused E-2 renewals due to the inability to prove that the investments cover more than basic expenses.
Treaty Trader Visa (E-1 Visa)
This can be used when an employee of a company with considerable trade between Japan and the United States is stationed at a U.S. subsidiary.
Trade includes not only import and export of goods, but also finance, insurance, transportation, advertising, travel, communications, data processing, accounting, engineering, and management consulting.
Since the purpose of the treaty is to develop international trade between Japan and the U.S., economic activity carried out solely within the U.S. with no international transactions is not considered "trade" for the purpose of the E-1 visa. At least 50% of the total trade volume of the U.S. corporation must be transactions between treaty countries (i.e. Japan and the United States). The trade volume is judged based off the numbers in the tax returns and financial statements made in the U.S.
The amount of trade required to apply for an E-1 visa is not specified in the United States Immigration Nationality Act (INA) or the United States Foreign Affairs Manual (FAM). The emphasis seems to be on the continuity of the trade activity rather than the actual numbers. Frequent and continuous trade activities can fulfill the conditions even if the numbers are small, compared to large trade amounts only a handful of times.
Treaty Investor Visa (E-2 Visa)
Individual investors who have made substantial investments in U.S. businesses are eligbile, but if a corporation is investing, the E-2 visa can also be issued to employees of that corporation who manage the investment or are otherwise investment professionals. There is no specific legal standard for the amount of investment, but it is necessary that the investment is actively made for the purpose of developing the U.S. business.
Although there are no particular restrictions of the nature of the businesses involved, investment requires "risk and proactive investment" in a real and operating business.
E-2 visa rules do not have a defined standard for the amount of investment, but it is clearly stated that the investment should not be too small that it "barely covers" the livelihoods of investors and their families. In addition, a common question from clients when applying is, "Can the U.S. corporation be a virtual office?" Virtual offices are not recommended, because it is difficult to prove the substance of a business in a virtual office or shared office space. There are different items that are emphasized when applying for company registration or visa renewal, but in either case, the company must have active job creation and continual employment with sales that surpass the previous year. It is essential to prove that the company continues to generate profits far exceeding the minimum amount that supports the investors' livelihoods, such as providing proof of increasing assets and issued shares.
E Visa Basic Requirements
- The company (or U.S. subsidiary) to which the applicant is employed must be considered to possess Japanese "nationality".
- The applicant must be a citizen of a country that has a trade agreement with the Untied States.
- The nationality of the E visa company (a U.S. corporation registered at the U.S. Embassy or Consulate) and the nationality of the applicant must be the same.
- In addition, the person (or corporation) with in possession of 50% or more of the shares of the E visa company must also have the same nationality.
- The business must continue to trade considerable amounts of goods, services, or technologies between the U.S. and the treaty country (E-1), or makes investments with "an element of risk" and conducts business with such (E-2).
- Employment of U.S. citizens is one of the key requirements.
- The visa applicant's position in the U.S. corporation must be an officer who directs business operations, a managerial position, or a professional with the technology and knowledge essential to the management of the company. Naturally, the applicant must be someone who has the ability to fill this position.
- At the end of the applicant's duties in the U.S., the applicant must be willing to leave the country.
Features of the E Visa (Differences from L Visa)
- Unlike other working visas (including L visas), there is no need to apply to the United States Citizenship and Immigration Services (USCIS), so costs and time involved can be significantly reduced.
- The maximum valid visa period is 5 years, but as along as the company continues its business and retains its qualification as an E visa registered company, the visa can be renewed semi-permanently. The E visa is said to be closest to permanent residence. (Compare this to L visas, which have a limited maximum validity period of 7 years.)
- Also unlike an L visa, applicants do not need a certain period of work experience at an overseas (non-U.S.) affiliate. E visas are also issued to personnel newly hired locally (in the U.S.) or from other companies. The visa is valid for 5 years, and the usual period of stay is 2 years upon entry into the U.S. Applicants can extend their stay with valid reasons.
- E visa registered companies no longer have to submit an annual report in order to maintain their status as long as there is one valid E visa holder working at the company.
Company Registration (E Visa Company Registration)
The first time a U.S.-based corporation (or branch of a Japanese company) applies for an E visa, it will first have to complete a "company registration" procedure with the U.S. Embassy in Tokyo or the Osaka-Kobe Consulate General. The company's suitability for an E visa will be examined, and this procedure cannot be done at the Sapporo or Fukuoka Consulates General. Only applicants from companies that have completed E visa registration can apply for an E visa.
Generally, it takes about 6 to 8 weeks for the company registration examination to complete. However, submitting incomplete documents carry a risk of prolonging the examination or having the application be rejected, so it is important to prepare appropriate and thorough documents from the beginning.
Note: During the actual application, it is necessary to apply for the company registration and the applicant's E visa at the same time. It is not possible to apply only for E visa company registration. To apply for an E visa, the online application form DS-160 is required, as well as submitting other application documents such as DS-156E. Please refer to the E visa application page on the U.S. Embassy website which details registration procedures including necessary documents. (Links to external sites.)
Visa guide from Visa Information Center
E Visa Application Required Documents
E-2 Treaty Investor Visa
- Resume (in English) with detailed educational and professional background
- Copy or photograph of visa applicant's passport (ID page)
- DS-156E (E Visa Questionnaire)
- Graduation certificate, transcript
- Visa applicant's current address and overseas (Japan, etc.) permanent address
- Company profile
- Financial report/statement
- Company's Federal Tax Identification Number (EIN/FEIN)
- Number of employees
- Date of company establishment
- Copy of company register, board meeting minutes, articles of incorporation, stock certificates
- Proof of considerable commercial activity between the U.S. and Japan
- Supporting letter from the dispatching company
- Name and title of the company person-in-charge who signs the application documents
- Details of planned job title, salary, and job description of the visa applicant while in the United States
- For dependent visa application, copy of family register
- DS-160 (Online Nonimmigrant Visa Application)
- The above are only some of the documents required for application. The required documents may differ depending on the applicant.
2. Consular Interview
After the company's examination, the applicant will be interviewed and screened by a U.S. Embassy or Consulate officer. It is necessary to have a thorough understanding of the application contents and be prepared to explain if there are questions. The core content for the examination is as follows.
Is the position in the E visa registered company an advanced management position? Does the applicant have the ability to hold that position?
Is the position in the E visa registered company a highly professional position that is essential for business operations? Does the applicant have the ability to hold that position?
*It is becoming increasingly difficults for E visa applicants in their 20s to have their application approved. In addition to proving that the applicant is highly educated, is it necessary to clarify why the employee is eligible for a high-ranking position that can supervise and control other employees.
There are no clear standards for companies and applicants to qualify for the E visa; it is at the discretion of the consular officer in each case. Especially when starting a business in the United States, it is very important to make sure that you have a visa before establishing a local corporation, in order to ensure smooth business development. Based on our experience and successful applications, we at IMS Legal Professional Corporation will guide you through a concrete list of documents required by the U.S. Embassy. We will carefully create appropriate documents tailored to the situation of companies and applicants, and provide various support throughout the process.
E Visa Dependent Visa
If the E visa holder's family only visits temporarily, they can use a B visa or the visa waiver program (VWP) if they meet the requirements. For spouses and unmarried children (under the age of 21) accompany the E visa holder to live in the United States, they may also obtain an E visa for dependents.
After traveling to the U.S. family members can obtain permission to work from the USCIS (after submitting Form I-765 and the prescribed fee). There are no particular restrictions on where family members can work. In addition, family members do not have to be the same nationality as the principal E visa holder. For example, if a Japanese employee obtains an E visa, their spouse can obtain a dependent visa even if they are Chinese.
Family members will also need to apply and submit documents to the U.S. Embassy or Consulate, such as a birth certificate and family register, etc. They will also be interviewed by a consular officer. Family members can have their interview at the same time as the principal E visa applicant, but depending on the situation, they may need to be interviewed separately. Rest assured that IMS Legal Professional Corporation will provide advice on how to proceed based on our past experience and achievements.
Intracompany Transferee Visa (L visa)
The L-1 visa is a visa for transferees within a multinational corporate group.
For example, it is used by executives and managers of Japanese companies that have subsidiaries or branches in the United States when they are stationed in the U.S.
There are two types of L visas: one for individual application, and one for a blanket petition used between affiliated companies (L-1 Blanket visa).
Application Qualifications (Company)
Unlike an E visa, before applying at a U.S. Embassy or Consulate (jurisdiction of the Department of State), the U.S. subsidiary must first petition the United States Citizenship and Immigration Services (USCIS, Department of Homeland Security) and obtain the I-797 form. Without this form, applicants cannot apply for an L visa.
L-1 Blanket Visa
Companies that dispatch a significant number of expatriates from abroad to the United States can use what's called the L-1 Blanket petition, which can reduce the time it takes to apply for an L-1 visa. This is given to the company itself by the USCIS in the form of an Eligibility Certificate.
If you apply for and are approved for an L-1 blanket qualification from USCIS, you can apply for an L-1 visa at the Embassy (Consulate) without having to obtain a separate I-797 form for each applicant traveling to the U.S.
There is also the advantage that visa holders can freely transfer to a previously registered group company within the U.S.
The L-1 blanket petition is only applicable if the following requirements are met.
- The U.S. corporation applying for the L-1 blanket petition has as least three affiliates (parent company, subsidiary company, sibling company, branch office, etc.) in the U.S. or another country.
- All of the dispatching subsidiaries/affiliates included in the L-1 blanket petition are engaged in commercial activities.
- The U.S. corporation applying for the L-1 blanket petition has been in business for at least one year.
- Group companies in the U.S. have total annual sales of more than $25 million. The total number of employees is 1,000 or more, or 10 or more L-1 visas have been obtained in the past year.
However, when applying for a visa with a L-1 blanket, unlike when obtaining an individual USCIS permit, it is necessary for the applicant to have a high level of management ability or specialized knowledge and skills to match the visa requirements at the time of application. These skills and knowledge must be explained in detail in the application.
- Must be an officer or manager employed by the dispatching company, or a professional with specialized knowledge.
- Must be a director/manager or a professional with professional knowledge in a U.S. corporation.
- Professionals must have advanced knowledge and skills unique to the group companies.
- Must have worked at an affiliate outside the United States for at least one year in the past three years.
- These requirements are not limited to those with Japanese nationality (need not have a specific nationality).
The U.S. subsidiary will submit form I-129 and I-129 L Supplement, along with addtional documents and the application fee, to USCIS. Addtional documents are an emormous amount of information that detail the fact that it is a multinational company, and that the L-1 visa applicant meets the application conditions.
If USCIS permits the subsidiary to obtain L-1 blanket qualification, the applicant must apply for an L-1 visa at the Embassy or a consulate in Japan.
*Only locally registered lawyers can petition USCIS, so IMS Legal Professional Corporation cannot accept application requests involving USCIS. However, we are able to introduce U.S. immigration lawyers (Japanese and Japanese-speaking), or you can also find your own immigration lawyer. If you already have a permit to apply for an L visa, IMS can provide support for applying at the U.S. Embassy in Japan, so please feel free to contact us. In addition, if you have any questions regarding eligibility for an L visa, etc., please consult with us before applying to USCIS. we will be able to judge the possibility of success so you can minimize potential losses for your company.
L Visa Characteristics
- Unlike the E visa, you cannot apply for an L visa at the U.S. Embassy (Consulate) without prior permission from USCIS. Therefore, obtaining this visa often takes time and money. On average, it can take 3 to 4 months from application to approval.
- Requires prior working experience at a non-U.S. affiliate for a certain period before applying for an L visa
- Maximum period of stay is 7 years (5 years for professionals)
L-1 Dependent Visa
As with E visa dependents, family members of the principal L visa holder must apply to the U.S. Embassy and have an interview with a consular officer. After arriving in the United States, dependents can obtain a permit to work from USCIS by submitting Form I-765 and the prescribed fees. There are no particular restrictions on where dependents can work. Dependents do not have to be of the same nationality as the principal visa holder.
Should I get an E or L visa?
Do you understand the difference between E and L visas? Let's consider the most common situations and let you know which visa you should get.
◆Case 1: If a corporation established outside Japan establishes a Japanese corporation, and then establishes a U.S. corporation, is it possible to obtain an E visa?
⇒ In this case, the main point is the investment ratio with regards to the Japanese corporation. Shares of corporations established in the United States must have a capital of 50% or more invested by Japanese companies or persons, or Japanese nationals holding 50% or more of the issued shares, in order for the U.S. corporation to be recognized as a "corporation with Japanese nationality" and be eligible for E visa applications.
◆Case 2: A Japanese company wants to dispatch an accounting manager to a subsidiary in the United States, since there is currently no personnel in the Japanese company suited to the role. Can a newly hired accounting manager be sent to the U.S. on an L visa without waiting one year after hire?
⇒ If you plan to dispatch an employee on an L visa, the accounting manager needs to have worked for at least one year at the Japanese company before they are able to meet application requirements. However, this requirement does not apply to E visas, so we recommend that you consider applying for an E visa if you need a Japanese accounting manager immediately at the U.S. subsidiary. You can also apply for an E visa in the form of a conditional employment contract, in which the accounting manager is hired on condition that they will be dispatched to the U.S. subsidiary. In this case, if the E visa application is rejected, then there is no need to hire the accounting manager job applicant.
◆Case 3: Currently, we are dispatching employees from our Japanese headquarters to our French branch office, but we want to send them to our U.S. branch office next. What visa should we apply for and where?
⇒ If you have affiliated companies all over the world, you can get the L-1 blanket permit and save the trouble of applying for individual L visas. Whether you have the blanket permit or not, you can apply for an L visa at any U.S. Embassy in any country. However, if you have already completed the E visa company registration process and are thinking of having the applicant go to the U.S. on an E visa, the applicant will need to return to Japan and apply at the U.S. Embassy in Japan. Since the E visa is highly linked to Japan, if the applicant has been working at the French branch for more than 5 years, for example, you will need to take extra precaution in applying depending on the situation because the connection to Japan is weak.
◆ Case 4: What kind of occupation does "professional occupation" mean?
⇒ For the E visa and L visa, "professional occupation" differs depending on the industry. In this case, please consult us individually as we cannot give a general answer.
◆Case 5: I have a ramen shop in Japan, and sales have been stable. I want to set up a branch in the U.S., so can I get an E visa?
⇒ With industries that always have local facilities such as restaurants and medical facilities, the amount of money spent locally is high, so these industries have a better likelihood of obtaining an E visa because the equipment and money spent is considered investments. However, rather than opening a U.S. branch and applying for an E visa at the same time, we recommend that you apply after the business is on track to some extent. We can also guide you on what visa you should use to get the business started and off the ground, so please let us know the overall situation for consideration.
◆Case 6: Fashion accessories are sent from Japan to a U.S. subsidiary and sold locally. Since this is considered import and export, can I get an E-1 visa?
⇒ The minimum amount of imports and exports for approving E-1 visas has not been clarified, but there is a tendency to desire continuous imports and exports with the United States in order for E-1 applications to be approved. In this case, we recommend that you consider applying for an E-2 visa instead of E-1.
Of course, there are many possibilities and individual circumstances in addition to the above cases. IMS Legal Professional Corporation has knowledge not only of working visas, but also the application requirements for other U.S. visas. If you give us the general idea you are considering, we will be able to guide you to the appropriate visa, so please feel free to contact us.