E visas enable investors, traders, and their employees to enter the US on a non-immigrant basis to trade or invest, provided they are a national of a treaty country and satisfy the relevant criteria.

The E-1 (Treaty Traders) visa allows a national of a treaty country to be admitted to the US to engage in international trade. Certain employees of such a person or a qualifying organization may also be eligible for this classification.

The E-2 (Treaty Investors) visa allows a national of a treaty country to be admitted to the US when investing a substantial amount of capital in a US business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

E Visa Statistics for Fiscal Years 2014-18*

With the Trump Administration seeking to limit legal immigration and taking an increasingly hostile approach to visa applications, what has been the impact on the E visas?

E-1 Year Issued Percentage Refused Percentage Waived/Overcome Total Workload
2014 7,330 78.6% 2,001 21.4% 1,449 9,331
2015 7,425 77.3% 2,175 22.7% 1,791 ↑269 9,600
2016 8,085 77.1% 2,390 22.82% 1,882 ↑875 10,475
2017 7,063 78.3% 1,959 21.7% 1,538 ↓1,453 9,022
2018 6,542 75.5% 2,124 24.5% 1,705 ↓356 8,666
E-2 Year Issued Percentage Refused Percentage Waived/Overcome Total Workload
2014 36,825 79% 9,782 21% 6,455 46,607
2015 41,162 79% 10,970 21% 7,796 ↑5,525 52,132
2016 44,243 76.8% 13,370 23.2% 9,464 ↑5,481 57,613
2017 43,673 75.6% 14,080 24.4% 9,079 ↑140 57,753
2018 41,181 75.3% 13,489 24.7% 8,647 ↓3,083 54,670

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  1. Total Workload: Highest in 2016 (E-1) and 2017 (E-2)

Less E-1 applications were submitted in 2018 than any other year; and less E-2 applications were filed in 2018 than 2017. Particularly, E-1 applicant figures were the highest in 2016 (10,475) but have decreased by approximately 1,800 applications following 2016. Moreover, the E-2 applicant figures were the highest in 2017 (57,753) but have decreased by approximately 3,200 applications following 2017.

  1. Visa Refusals: Lowest in 2014 (E-1) and 2014/2015 (E-2), and Highest in 2018

78.6% of E-1 visa applications and 79% of E-2 visa applications were accepted in 2014. Moreover, 79% of E-2 visa applications were accepted in 2015. Since then, the acceptance rates have decreased, particularly by 3.1% from 2014-2018 for E-1 visas; and 3.7% from 2015-2018 for E-2 visas.

E-1 visa denials increased by 2.8% from 2017 to 2018.  More visas were denied in 2018 (24.5%) than any other year. Similarly, more E-2 visas were denied in 2018 (24.7%) than any other year; E-2 visa denials increased by 3.7% from 2014 to 2018.

 

E Visa Red Flags

Qualifying for the E visa has become more difficult. AILA notably reports, ‘many investors consider the E-2 visa principally as a means to establish themselves and their family in the United States. This does not sit well with consular adjudicators, especially in light of the [Buy American, Hire American Executive Order] guidance they now utilize.’

Consular officers have evidently been applying increasingly narrow interpretations of the regulations. The following circumstances may invite closer scrutiny by consular officers or may be seen as involving a manipulation or distortion of the E regulations:

  1. Business Structure: The company’s business structure cannot be easily grasped or has not been adequately explained in the application.
  2. Applicant’s motive: Noting that the E visa is a non-immigrant visa, a prospective trader or investor’s actions reflect motives to stay indefinitely in the US, rather than engage in trade or invest in the US. Examples include:
    • The applicant previously spent extended periods of time in the US or is applying for the visa following completion of a student visa or L visa.
    • The applicant is currently in the US on a tourist or business, B-1 /B-2, and changing status to E-1 or E-2.
  3. E-2 Eligibility Requirements: The application does not explain how the business will lead to job creation nor encourage and increase investment in the US. Businesses that operate out of virtual offices or private homes, and businesses that have no employees other than the applicant, are unlikely to meet the eligibility requirements.
  4. E-2 Investment Funds: The ownership of the investment funds is obscure, and the funds do not appear to be irrevocably committed. Examples include:
    • The investment funds do not appear to belong the investor.
    • The money invested may belong to the applicant, but the investor appears to have recently obtained the investment funds to satisfy the E-2 requirements.
    • The investment amount is too small and may not enable the investor to achieve their commercial objectives nor advance the objectives of the E-2 visa category.
  5. E-1 Trade – Amount: The trade is of limited quantity and there is insufficient evidence of recurrent trade.
  6. E-1 Trade – Type: Companies trading in intangible goods, including companies operating in the professional services sector, when they do not adequately and clearly explain their commercial trading arrangements.

 

E visas allow investors and traders to start and grow their businesses in the US. An applicant’s eligibility for the E visa may be impacted by their previous or current stays in the US and the industry the business operates in, amongst other factors. It is evident that applications are more carefully assessed than previous years. Prospective applicants need a credible, well-reasoned and structured argument as to why their application merits approval. Advice from a qualified attorney is imperative to avoid the common pitfalls; and to gain a better understanding of any of the visa’s eligibility requirements and its application process.

At Davies Legal, we represent clients in connection with all types of immigrant and non-immigrant visa applications. We offer competitive fixed fee billing and an assurance that your case will be handled only by your designated, fully licensed US immigration attorney. Call now for a free no obligation quote.

 

[1] * Travel.State.Gov, ‘Nonimmigrant Visa Statistics’ (Travel.State.Gov) <www.travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html> accessed 06 January 2020.

Published: 20th January 2020