Applying for a Treaty Visa (E-1, E-2, E-3 and TN) in the Trump Era

TheDigitalArtist.  Pixabay

TheDigitalArtist. Pixabay

E-1 Treaty Trader and E-2 Treaty Investor Visas

Treaty Trader (E-1) and Treaty Investor (E-2) visas are available to citizens of countries with which the U.S. maintains a bilateral treaty involving commerce and navigation. In addition to meeting the visa requirements articulated below, E-1 and E-2 applicants must demonstrate the intent to leave the U.S. upon the expiration of their period of authorized stay.

E-1 visas are issued to individuals who are coming to the U.S. to engage in trade. Applicants must establish that: (1) the described activities constitute trade under the Immigration and Nationality Act (international exchange); (2) the trade is substantial; and (3) the trade is principally (at least 50%) between the U.S. and the treaty country. E-1 visas are also available to the employees of a qualifying trader who are coming to the U.S. in an executive or supervisory role, or who possess skills that are essential to company operations.

E-2 visas are issued to individuals who are coming to the U.S. to direct an investment enterprise. E-2 applicants must establish that: (1) the applicant has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise; and (2) the applicant seeks entry solely to develop and direct the enterprise. E-2 visas are also available to employees of a qualifying investor who are coming to the U.S. in an executive or supervisory role, or who possess skills that are essential to company operations.

E-3 Specialty Occupation and TN Treaty National Visas

The E-3 nonimmigrant visa classification that applies only to nationals of Australia, pursuant to a reciprocal treaty. The applicant must be coming to the United States to temporarily perform part-time or full-time services in a specialty occupation. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. 

The TN Treaty National Visa is a special visa for Mexican and Canadian professionals pursuant to the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the United States, Canada, and Mexico. Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, architects, computer systems analysts, dentists, economists, engineers, graphic designers, interior designers, lawyers, pharmacists, physicians, registered nurses, scientists, teachers, and veterinarians. Click here for a complete list of professions covered under the NAFTA and minimum education requirements and alternative credentials.

Trump's Buy American, Hire American Executive Order

On April 18, 2017, President Trump signed Executive Order 13788, "Buy American and Hire American" (BAHA), which sets forth the policy of the executive branch "to rigorously enforce and administer the laws governing entry into the United States of workers from abroad." On August 9, 2017, the State Department revised the E visa provisions in the Foreign Affairs Manual at 9 FAM 402.9-2(b) to instruct consular officers to adjudicate E visa applications "in the spirit" of BAHA.

  • Applications will be subjected to heightened scrutiny. As a result of BAHA, applicants should expect heightened scrutiny from consular officials during the interview and in reviewing supporting documentation. It is extremely important to be prepared for any further requests for evidence and for tougher questioning at interviews. For example, for treaty traders, be prepared to answer questions on how trade has supported the sale and consumption of American products and have advanced the hiring of U.S. workers.
    • Availability of U.S. Workers. Applicants seeking an E visa as an "essential employee" or those seeking E-3 or TN visa classifications can expect to be questioned about the availability of U.S. workers as a factor in assessing the degree of specialization the applicant possesses and the essentiality of the worker to the success of the business. Applicants should be prepared to answer questions about the position, their qualifications, and why they are uniquely qualified to perform the job duties. Essential skills employee visa applicants should be able to explain why an American worker cannot be hired to do the job.
  • Be Adaptable. U.S. consulates used to adjudicate E visa applications for registered companies quickly and with fewer required documents; posts have recently changed their procedures to require more documentation and vetting. In general, visa procedures are fluid and subject to change at any time. 
  • Be Patient and Stay Informed. U.S. consulates previously issued E visas in a matter of weeks. It can now take up to several months, even for registered companies. We recommend that for all applicants, make sure to inform yourself of the requirements of the visa class you're applying for and make sure you're prepared to explain why you qualify for such a visa.

Visa approvals are getting harder to come by under the Trump administration, but it is not impossible. Our firm has successfully assisted applicants with their visa applications. If you are affected by this development and would like our assistance in your visa application, please contact us. We are here to help. Follow us on InstagramTwitterFacebook or LinkedIn for up-to-date immigration news.

Rasoulpour Torregoza is the law firm for immigrants, by immigrants. We are founded on the motto of LegalEase: we do away with the legal jargon and make law easy to understand, so you can focus on what’s important to you – going for your American Dream.
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