Immigration Procedures Handbook - Chapter 4 - E Visa Category

Research References, Immigr. Proc. Handbook Ch. 4 Refs.
Immigr. Proc. Handbook Ch. 4 Refs. Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category Research References
Treatises and Practice Aids Fragomen, Del Rey, and Bernsen, Immigration Law and Business 2:74 to 2:76 Gallagher, Immigration Law Service 2d, 4:154 to 4:198 Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook Ch. 4 Introduction Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category References
Introduction Note the following developments since publication of the Supplement to the 20102011 Edition of the Immigration Procedures Handbook with regard to the E nonimmigrant category: Form DS-156E revised, use clarified. Form DS-156E, the Nonimmigrant Treaty Trader/Investor Application, was recently revised. The latest version of the form is dated 06-2011. The form is marked as rendering prior editions obsolete. The form is illustrated below as Sample Form 4-1. Analysis of the form follows the illustration. Also, the use of the form has been clarified. The form is required only if the applicant is applying for an E-1 treaty trader visa or an E-2 visa as an executive, manager, or essential employee. The form is not required if the applicant is applying for an E-2 visa as a principal treaty investor. In the latter cases, the DS-160 form solicits the relevant information to determine eligibility for an E-2 principal investor visa. I-129 filing tips. In a recent teleconference with stakeholders, USCIS officials provided guidance and clarification on completing certain aspects of the latest edition of Form I-129. The officials also provided some tips on filing the I-129. See 4:34 and 4:25, below. I-129 signature policy still not revised. USCIS has indicated that it expects to issue guidance that would prohibit immigration filings that are signed by outside counsel under a power of attorney, except in very limited circumstances outside the scope of business immigration. Currently, employers may authorize their outside immigration attorneys to sign applications and petitions on their behalf pursuant to a power of attorney. A revised policy has not been implemented as of October 15, 2011. Employers that use powers of attorney, however, may wish to discontinue this practice immediately out of an abundance of caution. State Department revises online nonimmigrant visa application. The State Department has introduced a revised edition of Form DS-160 which includes some enhanced technical features intended make the application more secure and easier to fill out, but also includes a strict new rule about who may electronically sign the application. Among other changes, the new Form DS-160 contains more options to save an incomplete form, which should make it easier for visa applicants to fill out the lengthy application. If the forms new features work as anticipated, applicants for nonimmigrant visas could find it easier to fill out and submit the new application and may see some relief from the slowdowns and technical problems that many experienced when using the previous version of the form. The agency emphasizes, however, that applicants must electronically sign and submit the application themselves. Visa applications cannot be signed by an applicants attorney or representative, except in special circumstances such as the applicants disability. The strict signature policy could cause some delays for those using an attorney or representative to help them complete the form. USCIS implements Secure Mail Initiative for EADs, Ombudsman recommendations to address interim EAD problems. In May 2011, USCIS announced that it had fully implemented its Secure Mail Initiative (SMI), which uses U.S. Postal Service Priority Mail with Delivery Confirmation to deliver certain immigration documents. Employment authorization documents issued to E family members will be returned using SMI. In addition, in a recent report, the USCIS Ombudsman found that USCIS is still taking more than 90 days to process EAD applications in many cases and problems in obtaining an interim EAD in these circumstances persist despite efforts undertaken in recent years to address these problems. In light of these findings, the USCIS Ombudsmans Office has recommended that USCIS improve EAD processing by re-establishing local authority to adjudicate EAD requests and by establishing uniform processing time goal of 60 days for issuance of the EAD. These proposals have not be implemented as of October 15, 2011. Responding to I-129 requests for evidence. Under the latest policy guidelines on RFE timeframes issued in July 2011, RFEs for most forms, including I-129 forms, will have a standard response time of 84 days. In addition, if an RFE is served by
Introduction, Immigr. Proc. Handbook Ch. 4 Introduction
mail, the applicant will have an extra three days to respond. The revised instructions were issued to provide greater consistency in the issuance of RFEs. Note that adjudications officers retain some discretion to reduce response times in specific cases where warranted by the circumstances, but must get supervisor approval in order to do so. As a result, when responding to an RFE, attorneys should follow the actual response time frame set forth in the RFE. DHS ends special registration program. In April 2011, however, DHS announced that it will no longer register foreign nationals in NSEERS, the special registration program which obligated foreign nationals from numerous countries of concern to comply with special screening, reporting, and departure requirements. DHS has determined that other existing security programsincluding the US-VISIT entry-exit systemachieve the same results. The suspension of special registration is welcome news for travelers from the designated countries of concern and for their employers. Individuals who were subject to NSEERS faced lengthy inspections at U.S. ports of entry and had less flexibility when departing the United States. Note, however, that questions about past compliance with NSEERS could still arise. More detailed information regarding the impact of this development is included in Ch. 11, below. Global Entry program opens at Canadian pre-clearance airports. Global Entry kiosks have recently opened at Vancouver International Airport and Ottawas MacDonald-Cartier Airport, and are expected to be available by September at Pearson International Airport in Toronto and Trudeau International Airport in Montreal. This means that Global Entry participants and Canadian participants in NEXUS can use these kiosks to expedite their entry into the U.S. See Ch. 11, below. Form I-539 revised. Form I-539, the application to change/extend nonimmigrant status was recently revised. The latest version of Form I-539 is dated 01/19/11. Earlier versions of the form, dated 06/12/09 or later, remain acceptable until further notice. A completed Form I-539 for family members of the E extension applicant is illustrated as Sample Form 4-5, below. Analysis of that form follows the illustration. The annotation covers all uses of the form by family members of principal E, H, L, O, P, and TN nonimmigrants. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Immigr. Proc. Handbook 4:1 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category I. Basic Information About the E Category References 4:1. Coverage of the E category
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The E category is especially useful for business owners, managers, and employees who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the United States and a foreign state or that represents a major investment in the United States. 101(a)(15)(E) of the Immigration and Nationality Act; 8 U.S.C.A. 1101(a)(15)(E). The E nonimmigrant category is available, however, only if a treaty of commerce and navigation or a bilateral investment treaty providing for nonimmigrant entries is in existence between the United States and the foreign state (except in the case of Sweden and Australia, which are covered even without a treaty). The E visa category was established to give effect to those treaties between the United States and foreign countries that provide for reciprocal benefits to nationals of each country who invest in the other country or who conduct trade between the two countries. These treaties provide some special benefits not available to other, similar nonimmigrant categories. Keep in mind these points when considering use of the E visa category: the E visa category can be used for purposes of conducting trade between the United States and the country of majority ownership of the company (E-1), or overseeing investment in the United States (E-2) the E visa category can be used by many different types of companies, from one owned by a single investor to a large multinational corporation the E visa category can be used by the companys principals or by its employees, as long as they are performing functions approved by the applicable rules, discussed below
Note: Legislation enacted in May 2005 created the E-3 visa category for Australian professionals performing services in a specialty occupation. Up to 10,500 E-3 visas are available each fiscal year. Spouses and children accompanying or joining the principal E-3 applicant are not subject to the numerical limitation and need not be Australian nationals. Australian nationals who are outside the United States apply for E-3 classification directly with a U.S. embassy or consulate on Form DS-156, the Nonimmigrant Visa Application. Australian nationals who are in the United States and are seeking an extension of E-3 status or a change to E-3 status must apply for USCIS approval. All applications for E-3 status must be accompanied by a Labor Condition Application (LCA) from the Department of Labor (DOL). The requirements and procedures applicable to the new E-3 category are similar to the requirements for H-1B1 classification (for Free Trade professionals from Chile and Singapore) and are discussed in detail in Chapter 5 of the H-1B Handbook.
4:1. Coverage of the E category, Immigr. Proc. Handbook 4:1
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Immigr. Proc. Handbook 4:2 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category I. Basic Information About the E Category References
4:2. Duration of stay
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Although an initial period of stay of two years is granted to persons coming to the United States in the E category, this period can be extended almost indefinitelyas long as the alien affirms that he or she will leave the United States when the period of authorized stay, including unlimited extensions, ends. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:3. Application process, Immigr. Proc. Handbook 4:3
4:3. Application process
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 It is possible to make the application for this status exclusively through a U.S. consulate abroad. A preliminary petition on Form I-129 does not need to be approved by USCIS. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:4. Special conditions
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 E-category aliens do not need to maintain a foreign residence during their U.S. stays, as long as they affirm their intention to leave the United States when their period of stay (plus any authorized extensions) expires. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:5. Alternatives to the E category, Immigr. Proc. Handbook 4:5
4:5. Alternatives to the E category
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 If a company or individual investor or trader does not qualify for treaty consideration, other alternatives are likely to be open in seeking entry to the United States, either to establish a new company or to service an established one. Probably the most useful category for a company engaged in trade with or an investment in the United States, but which cannot qualify under a treaty, is the L-1 visa category for intracompany transferees. This category is useful even for small investors seeking to set up a company in the United States. See Ch 5. An investor or trader may also use the B-1 visa category for business visitors to come to the United States for relatively short periods of time to set up and staff an investment or trading company. These persons, however, may not be paid by the U.S. enterprise. See the discussion in Ch 1. Large companies with established subsidiaries or affiliates in this country can also make use of the L-1 and B-1 categories, and can also bring to the United States skilled professionals, including some business executives, in the H-1B visa category for temporary workers in specialty occupations. The H-1B category is discussed in the H-1B Handbook. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:6. Family members of the E visa holder
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Family members of the E visa holder are entitled to enter the United States with the visa holder. Included in this category is the spouse of the visa holder, as well as minor unmarried children under the age of 21. Once children attain the age of 21 or get married, they are no longer eligible to remain in the United States in treaty status. Spousal employment authorization. Legislation enacted in 2002 provides work authorization for spouses of E-1 and E-2 nonimmigrants (treaty traders/investors). In the past, there was no mechanism for spouses of E-1 and E-2 nonimmigrants to work, although the government generally did not attempt to remove E spouses who were employed. Still, such individuals would not normally be able to change or adjust status because technically employment was a violation of status. Additionally, employers who employed E spouses without authorization could be subject to employer sanctions. The 2002 law covers only spouses of E principal nonimmigrants. Other family members cannot obtain work authorization. USCIS guidelines provide that spouses seeking employment authorization must apply for an employment authorization document (EAD) on I-765. The spouse cannot begin employment until the EAD is received. The form should be submitted to USCIS service center that has jurisdiction over the dependent spouses place of residence (unless the application is filed concurrently with an extension of stay or change of status application as discussed below). In completing the form, applicants write or type spouse of E nonimmigrant and insert (a)(17) as the regulatory cite required in Item 16 of the form. The latest version of the form is illustrated in Ch 2 (as Sample Form 2-5). A line-by-line analysis of the form follows the illustration. USCIS instructions state that in order to establish a valid marital relationship and verify current status of the principal E-1 or E-2 nonimmigrant and his or her dependent spouse, the I-94 cards of both the principal nonimmigrant and the spouse should be provided. Applicants should also submit a copy of the petition approval notice of the E-1 or E-2 principal to assist in verifying status (if a petition was previously filed with USCIS). Finally, EAD applicants must submit: (1) two full-face, passport-style photographs (the standards for which are described in detail in 20:20, below, in conjunction with adjustment applications), (2) the filing fee of $380 in a check or money order made out to the Department of Homeland Security, (3) a copy of any prior EAD issued to the applicant or, if no prior EAD issued, copy of government issued identity document (e.g., foreign passport or national identity document), and (4) Form G-1145 if the form will be filed at a USCIS lockbox facility and the applicant is requesting electronic notification of application acceptance. When the I-765 form is being submitted by an E-2 spouse and the form is filed alone (i.e., the form is not being filed concurrently with Form I-539), the form must be filed with a lockbox facility in Phoenix or Dallas (depending on the applicants location). If the I-765 form is filed concurrently with an extension of stay or change of status application (on Form I-539), the forms should be submitted according to the filing instructions for the I-539 form (i.e., the form must be filed
4:6. Family members of the E visa holder, Immigr. Proc. Handbook 4:6
with the California Service Center if the I-539 form is filed concurrently with the principals I-129 form). The filing instructions for the I-539 are set forth in 4:29 and 4:40, below. As an alternative to filing by mail, applicants are able to electronically complete and submit Form I-765 and the related filing fee through links on the USCIS homepage. Information regarding the e-filing program is provided in Ch. 23, below. E-filings are generally discouraged, however, if supporting paper documentation is required to be submitted separately as part of the e-filing process. The EAD will be sent to the student directly from the Service Center. The EAD will be returned using U.S. Postal Service Priority Mail with Delivery Confirmation. Once an approval notice is received, attorneys can contact USCISs National Customer Service Center to request the USPS tracking information for the related document which may be used at any time to obtain delivery status information at www.usps.com. Employment authorization, once received, is valid for employment with any employer, but limited to the period stated on the EAD. Dependent spouses of E nonimmigrants will be authorized to accept employment for the period of admission and/or status of their spouses not to exceed two years. USCIS may take up to 90 days to adjudicate the I-765 application. If the application is not adjudicated within 90 days of receipt, the alien can receive interim employment authorization for a 240-day period or until the application is adjudicated. The alien should go to the USCIS office with proof of identity and all communications from the service center (including the filing receipt on Form I-797C). Upon receipt of a Form I-765 requesting an interim EAD, local field offices are required to perform the following tasks: claims verification; contact the Service Center to initiate EAD production (for either interim or non-interim EADs); and provide a notice to applicant acknowledging status inquiry. NOTE: In practice, USCIS often takes more than 90 days to process the EAD application in recent years and there have also been reports of problems in obtaining an interim EAD in these circumstances. The agency has acknowledged these problems, and instituted measures to reduce delays including routine system sweeps to find cases pending for 60 days that were not yet assigned to an Immigration Services Officer, acceptance of service requests via the National Customer Service Center at day 75, and the adjudication, within 10 days, of expedite requests for cases pending past 90 days. To address these problems, the USCIS Ombudsmans Office has recommended that USCIS improve EAD processing by re-establishing local authority to adjudicate EAD requests and by establishing uniform processing time goal of 60 days for issuance of the EAD. These proposals have not be implemented as of September 8, 2011. There is no provision for back-dating a new EAD to the expiration date of a prior EAD. As a result, nonimmigrants must ensure that they apply for replacement EADs sufficiently in advance of the expiration date contained in any current EAD to avoid a lapse in employment authorization. An application to renew an EAD may be filed up to 120 days prior to the expiration of the original EAD. Any I-765 application for a renewal EAD that is filed earlier than 120 days before the date of expiration will be denied based on a filing date that was too early. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:7 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:7. Generally
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Three elements must be present for the E visa category to be available: (1) a treaty must exist between the United States and Country X; (2) majority ownership or control of the investing or trading company must be held by nationals of Country X; (3) Country X citizenship must be held by each employee or principal of the company who seeks E status under the treaty. If any of these three elements is missing, the E visa category cannot be used. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:8. The first requirement: a treaty of commerce and..., Immigr. Proc....
Immigr. Proc. Handbook 4:8 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:8. The first requirement: a treaty of commerce and navigation or bilateral investment treaty
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 To determine whether the E category can be used, the first step is to determine whether a treaty of commerce and navigation or bilateral investment treaty exists between the United States and the country of nationality of the foreign company or investor. See 4:8 for the rules to determine a companys nationality. (a). Treaty countries (as of September 15, 2010) Treaties or equivalent arrangements providing for trade and investment (E-1 and E-2) status are in effect with the following countries: Argentina Ireland Singapore Australia Italy Slovenia Austria Belgium Bolivia Bosnia and Herzegovina Canada Chile China (Taiwan only) Colombia Costa Rica Croatia Denmark Estonia Japan Jordan Korea (South) Kosovo Latvia Liberia Luxembourg Macedonia Mexico Montenegro Netherlands Norway 2012 Thomson Reuters. No claim to original U.S. Government Works. 13 Spain Suriname Sweden Switzerland Thailand Togo Turkey United Kingdom
Ethiopia Finland France Germany Honduras Iran
Oman Pakistan Paraguay Philippines Poland Serbia
Treaties conferring only E-1 treaty-trader status exist with the following countries: Brunei Greece Israel Treaties conferring only E-2 treaty-investor status exist with the following countries: Albania Ecuador Morocco Armenia Azerbaijan Bahrain Bangladesh Bulgaria Cameroon Congo (Brazzaville) Congo (Kinshasa) Czech Republic Egypt Georgia Grenada Jamaica Kazakhstan Kyrgyzstan Lithuania Moldova Mongolia Panama Romania Senegal Slovakia Sri Lanka Trinidad & Tobago Tunisia Ukraine
Note that bilateral investment treaties conferring E-2 status have been signed with the following countries but have not yet entered into force: Belarus, El Salvador, Haiti, Mozambique, Nicaragua, Russia, and Uzbekistan. The State Department will announce when any of these treaties go into effect. Note the following special conditions with regard to certain treaties: (1) Iran: Still in effect despite lack of diplomatic relations; only single-entry visas can be issued for Iranian nationals. Under an executive order effective June 6, 1995, trade in goods or services is prohibited with Iran. Since trade with the treaty country is an essential element of E-1 status, such status is barred under the executive order. E-2 status is still possible if it can be demonstrated that there is no financial connection between the investment enterprise and Iran. (2) United Kingdom: Only for British nationals normally resident in the UK; no landed immigrants (permanent residents) of Canada, Hong Kong, or other countries. Also, individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under UK treaty. (3) China: Taiwan only. (4) Vietnam: A treaty at one time existed with South Vietnam; that treaty is no longer in effect. (5) Australia and Sweden: The 1990 Act required that nationals of these countries be treated as though a treaty exists for E1 and E-2 purposes. Therefore, although there is not an actual treaty with these countries, they are listed above with other countries for which a treaty exists. (6) Yugoslavia: The State Department view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY - Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Montenegro, Serbia, and Slovenia continue to be bound by the treaty in force with the SFRY and the time of dissolution. (7) Eritrea: The State Department has not yet indicated whether Eritrea will be considered a successor to the treaty with Ethiopia. (8) Denmark: The E-1 treaty does not apply to Greenland. (9) France: The Treaty also applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion. (10) Japan: The Treaty also applies to the Bonin Islands and to the Ryukyu Islands.
4:8. The first requirement: a treaty of commerce and..., Immigr. Proc....
(11) Netherlands: The Treaty is also applicable to Aruba and Netherlands Antilles. (12) Norway: The Treaty does not apply to Svalbard (Spitzbergen and certain lesser islands). (13) Spain: The Treaty is also applicable to all territories. Typically, about one-half of the treaty aliens issued E visas are from Japan. Another 20% come from the United Kingdom, Germany, and France. The next biggest users of the E category are from Korea, Taiwan, Israel, Canada, and Italy. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:9 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:9. The second requirement: qualifying under the treaty (treaty companys ownership)
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 In order to qualify under one of the treaties, the company or individual engaging in trade or investment in the U.S. must have the same nationality as the treaty country. There are two points to remember with respect to this requirement: The nationality of the company engaging in trade or investment is the nationality of those persons who own at least 50% of the stock of the corporation. This rule encompasses 50-50 joint-venture companies. For large, publicly held companies that may have a difficult time establishing their nationality through stock ownership records, the firm can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. The place of incorporation or principal place of business is not relevant to determining nationality. The nationality of the persons owning the corporate stock is their country of citizenship. The nationality of each level of ownership must be determined. For example, if the treaty enterprise is owned by several other corporations, the ownership of each corporation must also be determined; this process must be followed all the way back to the ultimate owners, so that their nationality can be determined. Foreign nationals who are also U.S. permanent residents cannot be counted toward determining at least 50% ownership. The rule is that foreign nationals must be maintaining E nonimmigrant status if they are in the United States. (a). Examples of determining the nationality of a company for treaty purposes Note the following examples: Ten shareholders each own 10% of the stock in a trading company. Five of them are Belgian nationals, the others are nationals of other countries. The company qualifies under the treaty with Belgium, because 50% of the shareholders are nationals of the treaty country. The trading enterprise seeking status under the treaty is wholly-owned by a parent company incorporated in Japan. The parent company is publicly held, with tens of thousands of shareholders, and its shares are listed on the Tokyo stock exchange. The nationality of the parent company is Japanese, based on its stock listing (its place of incorporation is not relevant); the nationality of the trading enterprise is also Japanese, because its sole owner is Japanese. The example illustrates the need to go back through each layer of ownership to the ultimate owners. Three French nationals are equal owners of a company making investments in the United States. Two of the French nationals are U.S. permanent residents. In this situation, the investing company is not majority-owned by qualified nationals of a treaty country, and the company does not have French nationality. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:9. The second requirement: qualifying under the treaty..., Immigr. Proc....
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Immigr. Proc. Handbook 4:10 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References
4:10. The third requirement: nationality of the employee or principal
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Determining the nationality of the employee or principal coming to the U.S. is also crucial in qualifying for E visa status. The rule is that the principal investor or trader (the primary treaty alien) and employees of the treaty enterprise (the employee treaty aliens) must have the same nationality as the treaty enterprise. That is, they must qualify for treaty status under the same treaty as the treaty enterprise. Therefore, a national of France (a treaty country) cannot qualify for treaty status by working for a British company (also a treaty country).
Note: Although the primary treaty alien and employee treaty aliens must be nationals of the treaty country through which the company qualifies, the spouse or children of the alien can be any nationality. As long as the qualifying alien is eligible for treaty status, the spouse and children are automatically accorded status under the same treaty, regardless of their nationality. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:11. Special requirements for traders, Immigr. Proc. Handbook 4:11
Immigr. Proc. Handbook 4:11 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:11. Special requirements for traders
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 In addition to the general requirements for the E visa category, the treaty-trader subcategory has its own specific set of criteria. See also Immigration Law and Business 2:74. The requirements for treaty-trader status include: trade The trading company must be engaged in trade. substantial The trade must be substantial. principally with U.S. The trade must be principally between the U.S. and the treaty country. duties The employee or principal must serve the company in a specified capacity: either managerial or involving essential skills. (a). What constitutes trade? Prior to 1989, the concept of trade was limited to the exchange of tangible goods for money or other tangible goods. Rule changes that year, endorsed by the 1990 Act, have broadened that concept considerably. Under the new definition, trade can involve the exchange, purchase, or sale of goods or services. Services include economic activities with an output that does not encompass a tangible good. Among the businesses that could be included as enterprises trading in services are data processing, advertising, accounting, design and engineering, management consulting, and law firms. Businesses participating in a technology transfer are also engaged in trade for E-1 purposes, as long as title to the trade item passes from one entity to the other. Further changes to the definition in September 1997 clarify that trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. This change effectively permits the conferral of E-1 benefits before the trading company is in operation. In practice, application of this broader concept to business enterprises trading services could be difficult. Consider the following points: (1) Showing an exchange of services and/or money between the United States and the treaty country might depend on 2012 Thomson Reuters. No claim to original U.S. Government Works. 19
the corporate structure of the U.S. and international entities. A foreign entity that can show a substantial dollar or volume amount of contracts with U.S. clients should be able to set up a branch office in the United States through which the clients are serviced, with profits repatriated to the foreign entity. This operation would demonstrate an exchange of services and/or money constituting trade. On the other hand, the foreign entity could set up a U.S. company which it majority-owns and through which it markets its services in the United States. If the employees or know-how come from abroad and the profits are repatriated, then this situation would appear to be analogous to the branch office. If, on the other hand, most of the employees are U.S. citizens and some or all of the profits are not distributed to the corporate owner abroad, it is possible that insufficient exchange of services and/or moneys occurs to constitute trade. (2) Showing that trade in services is substantial can depend on the measure usedand if the measure is the flow of services and/or money between the United States and the foreign state, the substantiality standard could be difficult to meet. In the last situation described above, when most of the employees of the U.S. entity are U.S. citizens and most profits are reinvested locally and are not distributed to the overseas shareholders or parent company, an appropriate measure of substantial trade may be difficult to find. Should substantiality be measured by the number of contracts or dollar volume of business of the U.S. entity, regardless of the contracts directly serviced from abroad or the amount of earnings repatriated? Or should the substantiality of the trade be measured by the services or goods that actually flow between the United States and the treaty country? A good case can be made for the former position, because the foreign parent provides its general procedures and know-how as the inward flow, and derives a number of benefits, such as increased name recognition and long-term profitability, as the outward flow. Whether these intangibles are sufficient forms of exchange for treaty trade purposes could prove a problem. (3) Showing that the business activity of the U.S. firm consists principally of trade between the United States and the treaty country raises the same issue of what constitutes a flow of trade. When employees of the foreign office are moving back and forth between the United States and the treaty country, and the money flows back to the foreign office based on contracts directly with that office, it is clear that the U.S. activity consists principally of trade between the United States and the treaty country. When the U.S. entity is a separately incorporated subsidiary of the foreign office, however, then the provision of services locally in the United States has little appearance of an exchange of services and/or money that could be counted as a flow of trade that is principally between the U.S. and foreign entities. In this case, it must be argued that the flow exists because of the intangibles highlighted in point #2, above, and therefore the full volume of local activity conducted by the U.S. subsidiary constitutes trade principally between the U.S. and the foreign parent which ultimately benefits from the local activity. Even when the U.S. entity is not locally incorporated, but is instead a branch office of the foreign company, a problem arises, because it is unclear that the branch office can be isolated from the rest of the corporate entity to determine whether it is engaged in activity principally between the United States and the treaty country. If the whole corporate entity of which the branch office is a part is instead analyzed to determine whether it is engaged principally in U.S.-treaty country trade, its full worldwide activities would have to be considered, with the result that it is unlikely that U.S.-treaty country transactions will make up at least 50% of the companys worldwide activities. This catalog of problems illustrates the difficulties in using the E-1 category to trade in services. The principal alternative is to use the E-2 treaty investor category for service businesses being established in the United States. Of course, this solution only applies if a treaty conferring investor status exists with the foreign country. If an E-2 treaty exists, however, that category has advantages for the service business, which can establish eligibility without the difficult proof issues involved in an exchange or flow of services and/or money. In addition, the investment in a service business need not be large possibly well below $100,000as long as it is sufficient to establish the type of business involved and the investor has put up most of the value of the business. (b). How much trade is substantial? Once it is established that the treaty company is engaged in trade, it must be shown that the trade is substantial. No set minimum dollar value is used in determining whether trade is substantial. Rather, trade is measured by: the volume of trade. the number of transactions. the continued course of trade. The flow of trade items must be existing, continuous, and numerous; a single transaction, no matter how large in dollar value or protracted in time, does not constitute substantial trade. Although the monetary value of the trade item is a favorable factor, it is more important to have numerous transactions. Because the flow must be existing and continuous, the existence of commitments for future trade is also important. Examples of Determining How Much Trade is Substantial A company has made four transactions within the last year with U.S. companies to supply them with turbines worth
$250,000 each, but has no commitments for future sales. The total dollar value of the trade is $1,000,000. The volume of trade is low, the number of transactions is small, and the course of trade does not appear to be continuous. A trading company sells small ceramics to 1000 different retail outlets, involving the import of 100,000 pieces. The company has maintained this volume for the past 10 years. The dollar value of this trade is $1,000,000 ($10 per piece). The volume of trade is high, the number of transactions is large, and the history demonstrates a continued course of trade. Example 2 clearly involves substantial trade. Example 1 seems to fall short of the requirements outlined above; in such a case, however, it is important to look at the details of the trading situation. Consider the following: (1) How many companies demand this type of turbine? (2) How many are sold a year? (3) What percentage of U.S. sales for this type of turbine do these transactions represent? (4) How many such turbines does this company sell worldwide? It may well be that with this type of equipment, four transactions in a year represent a substantial volume and indicate a market need that assures a continued course of trade. What conclusions can be drawn from studying these examples? (1) A relatively small dollar amount can still represent substantial trade when the criteria set out abovevolume, number of transactions, continued course of tradeare met. (2) A large dollar value, however, may well represent substantial trade, even when those criteria may appear, at first glance, not to be met. Look at the facts and apply a common sense approach. Dont concede that trade is not substantial based solely on volume if the dollar amount involved is large. One point in particular to note on the issue of substantial trade: Because of the requirement that the trading company demonstrate a continued course of trade, it is clear that, at a minimum, the trade must have already commenced prior to an application for treaty-trader status. The continued course of trade, however, may have been conducted informally prior to the visa application rather than through an established trading entity, as long as trading has been established and exists at the time of the application. Unlike the treaty-investor visa categoryin which treaty investors may enter the United States when they are actively in the process of investing in this countrytreaty traders will find it difficult to meet USCIS and State Department standards without an existing flow of trade. (c). What does trade principally between U.S. and treaty country mean? The meaning of principally is clear: More than 50% of the total volume of international trade of the U.S. office must consist of trade between the United States and the treaty country. Note these points: the rest of the business of the U.S. trading company can consist of trade with other countries and domestic U.S. transactions the parent company situated outside the United States need not be principally engaged in trade with the United States not every employee entering the United States in E-1 status must be principally engaged in U.S.-treaty country trade, as long as the U.S. office as a whole is engaged principally in that trade Some difficulties may arise in determining which transactions of the treaty enterprise can be credited as U.S.-treaty country trade. This problem particularly arises with service enterprises. The issue is much more clear-cut when the trading company deals with tangible goods. Note regarding need to meet the principally requirement on an ongoing basis: USCIS takes the position that the requirement that trade be principally between the United States and the treaty country is ongoing. Therefore, the U.S. enterprise must meet the requirement not only at the time that the E-1 alien applies for a visa or admission to the United States, but at all times during the period of stay of the E-1 alien. Although it may be necessary for the level of trade to dip temporarily below 50% during the normal course of doing business, such a departure from the rule must be temporary; longterm departures from the rule would render the E-1 alien out of status. (d). What duties are appropriate for E-1 treaty-trader aliens? Two types of employees of a trading company can enter the U.S. to perform services for the company: an employee performing supervisory or executive duties an employee serving in a minor capacity who has skills which are essential to the successful operation of the 2012 Thomson Reuters. No claim to original U.S. Government Works. 21
enterprise. Important Point to Remember: The company cannot expect to staff its operation in the United States completely with nationals of the treaty country. Common sense is the rule: the closer to the top levels of management the position is, the more likely that the person filling the position will qualify for treaty-trader status. At lower levels, only those positions requiring a specialized, technical knowledge of the companys product not readily available among U.S. workers can be filled with aliens in treaty-trader status. In this latter situation, the company may be expected to train U.S. workers eventually to fill the technical positions; visas for technical staff will not be indefinitely renewed. Generally, the company should be ready to justify the employees to be sent to the United States as truly key to the operations of the U.S. enterprise. Executive or Supervisory Duties Common sense should be used in considering who qualifies as a supervisor or executive for purposes of E-1 status. Consider these factors: the title of the position the location of the job in the companys organizational chart the aliens job description, including the degree to which work usually performed by technical staff is to be performed by the alien the degree to which the alien exercises ultimate control and responsibility for the operation of the firm or office the degree of supervisory responsibility for a large proportion of the enterprises operations the number and type of employees directed by the alien the qualifications of the alien that indicate that he or she is suited for an executive or supervisory role Just because an employee has some supervisory functions does not mean that he or she can be classified as an executive or supervisor for E-1 purposes. Supervisory or executive duties must be the employees primary function, with other job duties being incidental to this primary function. Note re overstaffing with managers/supervisors: A company should not expect to bring in five or six managers to oversee just a handful of employees. Although there is no easy rule of thumb to apply in determining how many managers and supervisors are sufficient to run an enterprise, some element of proportionality between the number of managers and supervisors and the total number of employees must be maintained. Consular officers frequently request information on the number of foreign managers in relation to domestic workers in the company. Note re family members as managers/supervisors: The State Department recognizes that a special relationship between the principal treaty alien and a manager/supervisor may explain why an otherwise under-qualified employee is given managerial responsibilities. The position must still meet the usual requirements for managerial/supervisory positions, however. Employees with Essential Skills Non-executive and nonsupervisory employees may qualify for treaty-trader status only if they have essential skills for the efficient operation of the company. Essential-skills personnel may have specialized or proprietary knowledge, or they may be highly-trained technicians or start-up personnel; in the case of start-up personnel, the enterprise will be expected to train U.S. workers to replace the personnel. Qualifying Types highly trained technicians familiar with the companys product who are engaged in training and supervision of persons employed by the company in manufacturing, maintenance, or repair of the product. highly trained technicians actually performing the manufacturing, maintenance, or repair of the product, when U.S. workers are unavailable. Nonqualifying Types persons whose essential skills consist of knowledge of the language or culture of the treaty country. persons whose expertise relates solely to a variation of a generic product, so that U.S. workers can easily be trained to deal with the variation. For example: foreign technicians who are specifically trained to repair the trading companys appliances, when those appliances are commonly made and serviced in the U.S., and any variations between the two products are slight. It is important to note the following points: being a skilled employee is insufficient; the skill must be essential to the companys operation in one of the ways listed the technician must be qualified for his or her position, as demonstrated by his or her prior experience; the technicians skills should be unique; and the salary of the technician should be commensurate with the nature of the expertise not only must U.S. workers be demonstrably unavailable, the company also has some obligation to use the alien technician
to train U.S. workers so that they can replace the foreign technician Note regarding September 1997 E rules. The legacy Immigration and Naturalization Service (INS) and the State Department each published final E rules in September 1997 that affect the definition of essential skills employees. Perhaps the most contentious issue in the proposed rules was the treatment of essential skills personnel. The INS proposal would have established a labor market test under which the employer would have had an affirmative duty to show that qualified U.S. workers were unavailable in order to justify the admission of essential skills personnel. While evidence of recruitment, such as advertising campaigns, was not explicitly required under the proposal, employers might have found such recruitment to be the only viable evidence they could have submitted to meet their affirmative duty. The INS proposal also would have required employers to document their efforts through in-house training programs to replace the alien workers in most cases. Finally, the INS proposal would have required essential skills personnel to have unique or one of a kind skills, or proprietary knowledge of the employers product or manufacturing technique. To some extent, these proposals had been implemented in change of status cases decided by the service centers, leading most applicants to pursue E status through nonimmigrant visa applications at U.S. consulates. Conceding that it lacked the statutory authority to implement these changes, the INS in its final rules adopted the existing State Department criteria relating to essential skills personnel discussed above. This development has resulted in more consistent determinations between USCIS and the State Department on this issue. Note that both rules also clarify that the nonimmigrant status of an E essential skills employee terminates when the principal treaty trader obtains permanent residence. The agencies reason that an employee is not entitled to E status if the principal alien is in the United States in a nonimmigrant status other than E status or as a permanent resident. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:12 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References 4:12. Special requirements for investors
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 As with treaty-trader status, treaty-investor status depends first on three things: a treaty between the United States and the country of which the treaty enterprise is a national at least 50% ownership of the investing enterprise by nationals of the treaty country citizenship in the treaty country by principal investors and enterprise employees seeking admission through the treaty enterprise
Note: The company must be at least 50% owned by nationals of the treaty country. Joint-venture companies qualify even when the joint venturers are from different countries. Also, in smaller investor situations, the investors can end up with 50-50 splits of stocke.g., four American investors and four French investors, all with equal sharesand still qualify for treaty consideration. The requirements for establishing treaty-investor (E-2) status are also discussed in detail in Immigration Law and Business 2:75. Note the following: active investment The investor must make an irrevocable commitment of funds that represents an actual, active investment substantial investment The investment must be substantial, taking into account only those financial transactions in which the investors own resources are at risk creation of jobs The investment cannot be marginal in nature, that is, one which will only support the investor and his or her family; in most cases it should create job opportunities for U.S. workers essential role in enterprise The person for whom treaty-investor status is sought must fill a key role with the company, either as the investor who will develop and direct the investment, or as a qualified manager or specially trained and highly qualified employee necessary for the development of the investment (a). What is an active investment? A qualifying investment must be active; that is, the business enterprise underlying the investment must represent a real
4:12. Special requirements for investors, Immigr. Proc. Handbook 4:12
operating enterprise productive of some service or commodity. Several types of business activity are clearly not active investments: uncommitted funds in a bank account, even a business account, do not represent an active investment, unless enough other evidence of business activities exists to show that the funds are used in the routine operation of the business (payment of bills, purchase of inventories or equipment) passive or speculative investment held for potential appreciation in value, such as undeveloped land or the securities of a business in which the investor is not actively engaged Examples Illustrating Borderline between Active and Inactive Investments (1) Mr. J. buys a piece of undeveloped land in a rural area. He immediately hires architects and other planners who develop plans for a condominium community on the site. Mr. J. enters into contracts with local builders to begin preliminary work on the site, and he registers with the state officials a prospectus setting out the terms for purchase into the condominium community, including his companys role as future manager of the property and provider of common services. This situation is undoubtedly one involving an active investment, and evidence of Mr. J.s plans submitted with his visa application should assure issuance of his E-2 visa. (2) A common situation is one in which the investor buys and manages a property that already involves an income-producing enterprise. Mr. J. purchases a shopping center, which has already been constructed, occupied, and in business for a number of years. Nevertheless, this investment is also active, in that Mr. J. must engage himself and his company in continuing to provide services to tenants of the shopping center, manage and maintain the center, and lease any unoccupied space. An E-2 visa would also be appropriate in this situation. (3) A common variation of the shopping center situation is for the investor to contract with a management company to handle all of the active business arrangements. In this case, the investment takes on many of the features of a passive or speculative investment held merely for potential appreciation in value. Unless the investor can show that he or she will be actively engaged in the business, it might be difficult to qualify for E-2 status. On the other hand, there is no reason why the person investing in an ongoing business enterprise should not be able to demonstrate an involvement in management even when a management company has been contracted to handle many of the business arrangements. The proof on this point is a question of submitting the proper documentation. Note, however, the difficulty in meeting the requirement of expanding job opportunities. As highlighted by Example 1, many common problems with the active investment question lie in situations in which the investor is actively in the process of investing, but the investment has not yet become fully operational. An investment need not be fully operational in order for the investor or qualifying employees to receive an E-2 visa. The active investment hurdle must be overcome, however. This question comes down to one of proof and of submitting the correct supporting documents to show that an active investment is planned. See 4:17. Note regarding use of escrow accounts. The legacy INS and the State Department each published final E rules in September 1997 addressing the use of escrow accounts. With regard to the requirement that the qualifying investment must be active, the rules endorse the use of escrow accounts to protect the investor in the event the E visa application is denied. Other evidence must still be submitted showing that the funds will be used in the routine operation of the business. (b). What is a substantial investment? No absolute test can be applied in determining whether or not an investment is substantial. The government uses an elaborate series of tests to evaluate whether or not the substantiality requirement has been met. These tests are quite complex. The Amount of the Investment The legacy INS and State Department have both reconfirmed that there is no minimum dollar amount necessary in order for the investment to be considered substantial. In reaching this conclusion, the government agencies approved an investment of well under $50,000 in a service businessan automotive design firm that supplied skilled designers to U.S. auto manufacturers on a consultancy basis. This ruling clearly opens the E-2 category to investments in service enterprises requiring very little capital for start-up expenses, since the principal investment in the enterprise is the knowledge and skills of the employees. In order for an investment to be considered substantial, it must meet one of two tests: it must be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses), or it must be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses). 2012 Thomson Reuters. No claim to original U.S. Government Works. 25
Note regarding small subsidiaries of a large parent company: Even when the foreign parent company has substantial investments in the United States through a number of subsidiaries, each subsidiary individually must be considered a substantial investment in order for its employees to qualify for E-2 status. In such a case, some subsidiaries may be able to qualify its employees, while the level of investment for other subsidiaries will not be considered substantial enough to qualify its employees. Benchmarks for minimum investments. The September 1997 rules provide guidance regarding a substantial investment. The legacy INS and the State Department had proposed the use of a sliding scale. Under that scale, the larger the total value of the business or the cost to start up the business, the smaller the percentage of the total investment the investor must put up to meet the substantiality requirement. Citing concerns that the scale may be applied rigidly by adjudicators, both agencies declined to include the scale in their final rules. The State Department has stated, however, that consular officers may still use the scale as a benchmark. As a result, it may still be good practice to refer to the scale in making an initial assessment as to whether an investment is substantial. Following is the sliding scale: Total value of business or cost to start new business Minimum percentage of investment required Less than $500,000 $500,000 to $3,000,000 More than $3,000,000 75% 50% 30%
Remember that multi-million dollar investments by large foreign corporations may be substantial without regard to their proportion to the total business value. Note also that the scale is not intended to be a rigid, bright-line test, but only a guideline; investments must still be evaluated on a case-by-case basis for adequacy. Small-scale investments may still be acceptableincluding ones smaller than $100,000if the amount invested represents nearly all of the total value of the business or the start-up costs. Types of Financial Transactions Making Up the Investment Not all financial transactions incurred in setting up the business enterprise can be counted toward calculating the amount of the investment. As noted, mere possession of uncommitted funds in a bank account in no way indicates that an investment has even been made. Even when an investment has clearly occurred, only those transactions in which the alien is personally at risk in the event of business failure can be counted. Following is a listing of qualifying and nonqualifying investments under State Department guidelines. Note that not all of these guidelines are well founded in the immigration law. Still, it is difficult to ignore the published standards. If your investment would have a problem qualifying under these guidelines, you should seek legal assistance before giving up on the E-2 visa. qualifying investments loans secured by the investors own assets, such as a mortgage on his or her real property. unsecured loans granted on the basis of the investors signature. cash reserves placed in a business account at the disposal of the business for purchase of equipment, property, or start-up inventory. (Remember, cash reserves alone, without evidence that the business enterprise has been undertaken, will not satisfy the requirement of an active investment.) value of purchased equipment and property. nonqualifying investments mortgage debt or other loans secured by the enterprise assets. loans for which the lending institution has recourse against a guarantor in the event of nonpayment by the investor. cash not held in reserve by the corporation, such as cash held in personal bank accounts. rental payments, inventory purchases, and other recurring costs beyond the start-up of the enterprise. Such costs are assumed to be paid out of income generated by the enterprise and are not a part of the investment attributable to the investor. (c). What is a marginal investment? No explicit requirement exists that an investment create employment for U.S. workers. This requirement is read into another requirementthat the investment not be marginal; that is, it must not be solely for the purpose of earning a living for the investor and his or her family. It is therefore important to be able to affirm, and to demonstrate, that the investment will create jobs for U.S. workers. The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the alien investor and the aliens family members. The question of what is marginal, therefore, depends more on the projected return on the
4:12. Special requirements for investors, Immigr. Proc. Handbook 4:12
investment than on the size of the investment. In new investments, this determination will therefore be somewhat speculative. Two ways of approaching this question can be taken: Is the business enterprise the type that, of necessity, will require employees beyond the investor in order to operate? Will the business be conducted on a scale that will assure this employment? Can reliable projections of income be made that show that sufficient funds will be generated beyond a living wage for the investor, such that money will be available to pay salaries to U.S. workers? Either type of showing should be sufficient to meet the requirement that the investment not be marginal. Of course, in an ongoing business, all that need be shown is that U.S. workers are in fact employed by the business enterprise. The September 1997 rules clarify that the capacity to employ U.S. workers must be established within five years of the principal investors admission to the United States. Any business plans submitted with the visa application must reflect that U.S. workers are currently employed by the enterprise or will be employed within five years. Presumably, extensions will not be granted beyond the five-year period if jobs are not created for U.S. workers, nor will visas be reissued for the same reason. Note: U.S. workers include all persons entitled and authorized to work in the United States on a permanent basis. These include aliens who are permanent residents, temporary residents legalized under one of the legalization programs enacted in 1986 (most of these persons have already become permanent residents), and aliens who have been accorded refugee or asylee status. Not included are nonimmigrant aliens, out of status or illegal aliens, aliens in deportation or exclusion proceedings, and aliens who are merely applicants for asylee status. (d). What constitutes an essential role in the enterprise? As already noted, both the principal investor and certain employees can obtain treaty-investor status. Principal Investors In order for one of the investors to enter the U.S. as a treaty investor, however, he or she must be responsible for the development and direction of the investment. This is obviously the case when the investor owns a majority interest in the investment enterprise (provided he or she has not ceded all managerial control), but not necessarily true when there is more than one investor. Example of Determining a Principal Investor Two French nationals join one U.S. citizen in establishing a French bakery devoted to the production and marketing of croissants. Each contributed one third of the capital investment, and each holds one third of the stock in the corporation. While the company is clearly qualified to send French nationals to the U.S. under the treaty with France, neither of the French investors has a controlling interest in the company, and a controlling interest is the test for determining whether the investor is responsible for development and direction of the company. Neither individual could come to the United States in E-2 status as a principal investor in the company. There is another way to have the French nationals come to the U.S., howeveras employees of the company (see discussion below). Note: There are three important features to the requirement that the entering alien on an E-2 visa be responsible for the development and direction of the investment: Ownership by an individual investor of at least 50% of the business is sufficient to qualify the principal investor on the basis of control Representatives of corporate investors holding less than 50% in the investment are treated differently. If the corporation has operational control of the investment through its minority stock holding, its representatives can qualify as investors responsible for the development and direction of the investment. Some individual investors might also qualify based on operational control, as long as the other holdings in the enterprise are sufficiently dispersed that the individual has effective control of the enterprise. Even majority ownership is insufficient to qualify an individual investor on the basis of control if the investor has ceded all managerial control over the enterprise. A majority owner who cedes managerial control over his enterprise does not 2012 Thomson Reuters. No claim to original U.S. Government Works. 27
have sufficient control to develop and direct that enterprise. Employees of the Investing Enterprise Two classes of employees may be accorded treaty-investor status, and these classes are very similar to the classes of employees entitled to treaty-trader (E-1) status: treaty nationals serving in a managerial capacity treaty nationals who serve in technical capacities requiring special training and qualifications, and who are needed to: establish the enterprise (start-up). train or supervise persons serving in technical positions, such as manufacturing, maintenance, or repair technicians. continuously monitor and develop product improvement and quality control. In effect, the employees must be essential for the companys operation. As with the treaty-trader status, a key aspect of determining how essential an employee is to the operation is whether U.S. workers have the necessary skills to fill the positions. When employees are brought to the U.S. for start-up of the enterprise, it is expected that once start-up has been completed, U.S. workers will be trained to fill these positions. The U.S. government has a policy establishing one year as the rule of thumb for the necessity for start-up personnel. Renewal of visas for start-up personnel after one year often occurs, however, if the employer affirms the need for their continued presence. As noted in the example with regard to principal investors that minority owners cannot come to the U.S. in E-2 status simply by the fact of their investment, because they do not have actual control of the enterprise. Such persons can, however, be hired by the company in managerial capacities, and can obtain E-2 visas by this means. They must have credentials that qualify them for managerial employment, however, in order to qualify for E-2 status in this manner. Note regarding Service standards governing employment of essential skill employees. The legacy INS and the State Department each published final E rules in September 1997 that effect the definition of essential skills employees. Perhaps the most contentious issue in the proposed rules was the treatment of essential skills personnel. The Service proposal would have essentially established a labor market test under which the employer would have had an affirmative duty to show that qualified U.S. workers were unavailable in order to justify the admission of essential skills personnel. While evidence of recruitment, such as advertising campaigns, was not explicitly required under the proposal, employers might have found such recruitment to be the only viable evidence they could have submitted to meet their affirmative duty. The Service proposal also would have required employers to document efforts through in-house training programs to replace the alien workers in most cases. Finally, the Service proposal would have required essential skills personnel to have unique or one of a kind skills, or proprietary knowledge of the employers product or manufacturing technique. To some extent, these proposals had been implemented in change of status cases decided by the service centers, leading most applicants to pursue E status through nonimmigrant visa applications at U.S. consulates. Conceding that it lacked the statutory authority to implement these changes, the Service in its final rules adopted the existing State Department criteria relating to essential skills personnel discussed above. This development should result in more consistent determinations between USCIS and the State Department on this issue. Note that both rules also clarify that the nonimmigrant status of an E essential skills employee terminates when the principal treaty investor obtains permanent residence. The agencies reason that an employee is not entitled to E status if the principal alien is in the United States in a nonimmigrant status other than E status or as a permanent resident. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:13. Special requirements for Canadian and Mexican..., Immigr. Proc....
Immigr. Proc. Handbook 4:13 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category II. Basic Requirements For Obtaining E Status References
4:13. Special requirements for Canadian and Mexican traders and investors under NAFTA
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 NAFTA provides for the temporary entry of Canadian and Mexican citizens as treaty traders and investors. With one exception, requirements and procedures for Canadian and Mexican traders and investors are the same as those applicable to nationals from other treaty countries. The one exception relates to the strike provision contained in NAFTA which is only applicable to Canadian and Mexican traders and investors; under the strike provision, a visa or entry may be denied when the temporary entry of the citizen of Canada or Mexico may adversely affect the settlement of a labor dispute or the employment of a person involved in such a dispute. The strike provision is triggered only if the Department of Labor certifies the existence of a strike or work stoppage. E nonimmigrants already in the United States are not affected by the provision. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:14 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status A. Overview References
4:14. The process for obtaining E status (generally)
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 A person seeking E-1 or E-2 status does not need to petition USCIS in order to obtain E status unless the person is already in this country in some other nonimmigrant category. In the latter case, a change of status application must be filed with USCIS (see 4:27 to 4:31) or the individual may leave the country to obtain an E visa at a U.S. consulate and reenter the U.S. as a E treaty trader or investor. To obtain the visa, the investor or trader must make an application for a nonimmigrant visa at U.S. consular post abroad. The procedures for making such an application have been revised substantially in recent years and vary by country. All applicants must first prepare and submit an electronic nonimmigrant visa application, Form DS-160. The applicant will also need to upload a digital photo with the application. Once the application is submitted, applicants are typically required to pay the visa application fee at a designated bank. After the fees are paid, the applicant may then schedule a visa interview with the consular post. The applicant often is asked to use a designated phone or online service to schedule the interview. Finally, the applicant must appear for his or her visa interview carrying the necessary documents, including the DS-160 confirmation page, proof of payment of the application fee, his or her passport, photos, and supporting documents establishing eligibility for the particular nonimmigrant visa sought (including the special E Supplement, Form DS-156E). Note that because of the complexity of these cases and the extensive supporting documentation that must be reviewed, many consular posts will prescreen E visa applications. During this process, the post will first review the application papers, and request additional documents (if necessary), prior to an interview with the persons or employees actually coming to the United States, in order to resolve first the eligibility of the investment or trading enterprise. The first interview is typically conducted with the E-1 owner or E-2 investor. Once the eligibility of the enterprise is established (and the company is registered), additional visa applications for company employees may then be expedited. While Canadian citizens are generally exempt from the visa requirement, Canadians seeking E status must obtain an E visa. The general procedures which must be followed to obtain a nonimmigrant visa from a U.S. consulate abroad are discussed in Ch 10. That chapter describes the common elements of a nonimmigrant visa application, the general filing procedures, and guidelines for visa issuance and renewal. Special considerations in E visa cases are discussed below. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:15. Usual application papers, Immigr. Proc. Handbook 4:15
Immigr. Proc. Handbook 4:15 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status B. The Application Papers References 4:15. Usual application papers
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The papers supporting an E nonimmigrant visa application consist of the following: 1. 2. 3. 4. 5. Form DS-160, the online nonimmigrant visa application (completed online before submission of documents for prescreening and before the visa interview) Printed Confirmation Page, confirming submission of DS-160 (submitted with the application package if prescreening required) Form DS-156E, Nonimmigrant treaty trader/investor application Supporting letter from the treaty enterprise or individual investor or trader Supporting documentation satisfying each of the elements of E treaty qualification (extensive documentation may be required for initial company registration; documentation regarding eligibility of enterprise not required if prescreening conducted and company is already registered) Passport and passport-sized photograph for the applicant and for each family member Application fee, if required on the basis of reciprocity (when required, the reciprocity fees are usually paid on the day of the interview)
6. 7.
8. Machine-readable visa fee of $390 Most of these elements are common to all nonimmigrant visa applications and are discussed in detail in Ch 10. With regard to E cases, note the following: The first step in preparing the papers for E treaty status is to check with the U.S. consulate where the application will be made to ascertain its requirements. Consultation with the consulate on its requirements for an E visa application can save time and effort. Detailed information is often included on the consular post Web site. Links to post websites are available at: http://www.usembassy.gov/. Information sheets issued by the U.S. embassies in London and Tokyo are reproduced in Appendix 4. Form DS-160, the electronic nonimmigrant visa application form, is now mandatory at all U.S. diplomatic posts (as of April 30, 2010). Form DS-160 is a fully automated application that is completed, signed and submitted on-line. Applicants using the DS-160 must also electronically upload a U.S. passport-sized identification photograph. Once the form is completed online, the applicant will need to print the confirmation page and either submit the document with the 2012 Thomson Reuters. No claim to original U.S. Government Works. 31
application package (if prescreening required) or bring this document to the visa interview (if the company is already registered or no prescreening is required). A completed DS-160 form is automatically transmitted to the consulate. The DS-160 application form combines the previously used DS-156 and DS-157. The form does not replace the DS-156E form, the E Supplement (see below). Details instructions on preparing and submitting Form DS-160 are provided in Ch. 10, below. A standardized E questionnaire was developed by the State Department several years ago to normalize the information sought by U.S. consulates worldwide in E-visa cases. The form (designated Form DS-156E, the nonimmigrant treaty trader/investor application) is mandatory for most E visa applicants. In view of this, a full annotation of the form is included in 4:18, below. All parts of the form are required for initial company registrations. For companies that are already registered, only Part III of the form is required (relating to the individual visa applicant). If the applicant is a treaty trader (E-1) or an executive/manager/essential employee (E-1 or E-2), he or she must complete the paper DS156E form as well as the electronic DS-160. If the applicant is a principal treaty investor (E-2), he or she should complete only the online DS-160. In the latter cases, the DS-160 form solicits the relevant information to determine eligibility for an E-2 principal investor visa. The State Department has increased the fees that U.S. consulates charge for processing nonimmigrant visa applications, effective June 4, 2010. Under its new tiered fee schedule, DOS will charge higher fees for visa categories that require more government resources to adjudicate and issue. The machine-readable visa fee has been raised from $131 to $390 for E visa applicants. These fees are in addition to any reciprocity fees that may be required of applicants whose countries of citizenship charge high visa fees to U.S. citizens. The MRV fee is typically paid in advance and evidence of payment must be presented with the application package (if prescreening is required) or brought to the interview (if the company is already registered or no prescreening is required). Following is a discussion of the materials that must be prepared by the treaty enterprise in support of the nonimmigrant visa application. Prior E treaty company registration and re-registration problems. Many consular posts use a process known as registration. The first time an E visa application is made involving a particular company, extensive documentation is required to establish the eligibility the qualification of the company or operation in the United States. Once the eligibility of the E-1 trading or E-2 investment enterprise is established and the company is registered, the posts will retain the corporate information for subsequent applicants and thereby expedite future E visa applications for individual employees. The registration letter from the post will be sufficient without the extensive supporting documentation required for initial registration that addresses the companys eligibility for visa classification. Re-registration of the treaty company will be required periodically. E treaty company re-registration policies vary among consular posts. As a practical matter, processing times can stretch to several months, placing E personnel in jeopardy of becoming stranded for indefinite periods during the re-registration process. The situation is made worse by the fact that many posts lack a formal procedure to advise companies when re-registration is due, and there seems to be no clear policy with respect to visa issuances prior to the filing or approval of re-registrations. Some posts, for example, renew E visas only for the balance of time left in an existing E-2 registration. Responding to this problem, the State Department has indicated that consular officers have the discretion to require an applicant to submit an entire E visa application whenever they apply. Because consular officers have the ability to request further documentation reasonably related to any visa application, it is not unreasonable to require applicants to present further documents detailing the information in the DS-156E, including company information. The State Department recommends that companies maintain good contact with consular sections processing E visa applications in order to be able to provide information whenever necessary and on a timely basis. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:16. The support letter, Immigr. Proc. Handbook 4:16
Immigr. Proc. Handbook 4:16 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status B. The Application Papers References 4:16. The support letter
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Apart from the information included on Form DS-156E, the main portion of the E visa application consists of the supporting letter and supporting documentation from the enterprise. Those papers must set forth all of the basic elements for qualification for E treaty status described in 4:7 to 4:13. If the company is already registered, the company support letter should focus more on the position to be filled and the applicants qualifications. Assuming the company is not already registered, the supporting letter must include these essential elements: reference to the appropriate treaty a statement setting out the ownership of the treaty-qualifying company reference to the nationality of the individual for whom the visa application is made In addition to the three essential elements above, the cover letter must also include the following information, depending on whether it is for treaty-trader (E-1) status or for treaty-investor (E-2) status: E-1 status the nature of the companys trading business. the volume of trade being conducted. the percentage of total trade (by volume) between the U.S. operation and the treaty country. the duties to be performed by the individual for whom the application is being made. the qualifications of that individual to fulfill those duties. E-2 status the nature of the investment activity, i.e., the business to be conducted. the total value of the investment enterprise or the amount required to start up such an enterprise. the size and amount of the investment, including the proportion of the investment amount to the total value of the enterprise or start-up costs. the components of the investment, including cash, assets, inventory, and loans, and the source and security for such loans. the steps taken to undertake the investment, including the irrevocable commitment of capital and resources. the prospects for the employment of U.S. workers through the investment, including any workers already employed. the duties to be performed by the individual for whom the visa is sought. the qualifications of that individual to fulfill those duties. 2012 Thomson Reuters. No claim to original U.S. Government Works. 33
On the following pages are several sample letters illustrating various types of E visa situations, and annotations explaining those letters. Sample Letter 4-1 illustrates the E-1 treaty-trader situation. This letter is from a large company in a case involving a visa applicant who will serve in an executive capacity. Sample Letter 4-2 illustrates the E-2 treaty-investor situation in a case in which the investment is already in place. Sample Letter 4-2 also includes the presentation necessary when the alien is to fill a managerial capacity. Sample Letter 4-3 involves a treaty-investor situation in which the investment has already been established, and the alien making the visa application is to serve in a capacity requiring essential skills. (a). Sample Letter 4-1: Letter supporting application for E-1 treaty trader visa United States Consulate Nonimmigrant Visa Section Hamburg, Germany Re: Application for E-1 Treaty Trader Visa of Mr. John SMITH Dear Sir or Madam: This letter is submitted by German Manufacturing Company in support of the above-captioned visa application. The application is made pursuant to the treaty of commerce and navigation between the United States and the Federal Republic of Germany. The German Manufacturing Company is one of the worlds largest manufacturers of machine parts essential to the operation of electric turbines. As such, its worldwide sales last year totaled over $2 billion (U.S.). Of that total, close to $500 million (U.S.) was attributable to sales in the U.S. market. These figures are documented in the attached annual report of our company. GMC, Inc., is a wholly owned subsidiary of German Manufacturing Company, incorporated under the laws of the State of Delaware, for the express purpose of serving as the conduit for our U.S. business. Since 100% of the stock of GMC, Inc., is owned by German Manufacturing Company, which is in turn a publicly-traded German corporation, GMC, Inc., qualifies as a trading company under the provisions of the treaty of commerce and navigation between the United States and Germany. In addition, GMC, Inc., as the subsidiary of the German Manufacturing Company responsible for all U.S. sales, is engaged in substantial trade between the United States and Germany on the basis of the figures cited above. The total sales of $500 million in the last fiscal year represents over one million units. This trade is exclusively between the U.S. and Germany, representing 100% of the U.S. firms business activities. Our company has maintained this volume of trade in the U.S. market for the last five years, as documented by the attached report from our accounting firm. Because of the scale of business activity conducted by the U.S. subsidiary, it maintains a full-time staff of 150 employees, of whom 100 are qualified U.S. workers. Mr. Smith has served with our company in the past five years as Vice President, North American Sales. He has been with our company for the last 20 years in various capacities, and holds an M.B.A. degree from Hamburg University. We intend to send Mr. Smith to the United States in the capacity of President of GMC, Inc., in order to directly supervise the sale of our products in the U.S. market. We believe that by having Mr. Smith on the scene, he will be better able to enhance our companys market share and service our U.S. accounts. Mr. Smith is undoubtedly qualified to fill this position, as his years of experience and educational credentials attest. Mr. Smith is a German national, as evidenced by his passport, which is submitted with this visa application. We believe that the facts stated in this letter, supported by the attached documentation, demonstrate clearly Mr. Smiths qualification for E-1 treaty trader status, and therefore respectfully request that the E-1 visa be issued to Mr. Smith for his earliest possible transfer to the United States. He will be temporarily assigned to the U.S. subsidiary at an annual salary of $75,000 (U.S.). Sincerely, John Jones Executive Vice President German Manufacturing Company Analysis of Sample Letter 4-1
Paragraph 1. Refer to the relevant treaty. Paragraph 2. Establish the background and credentials of the company, including the type of trade in which the company is engaged. Paragraph 3. Establish the ownership of the company, volume of trade involved, and the percentage of total volume of trade between the U.S. and the treaty country. It does not matter what percentage of U.S. trade makes up the total for the foreign office or worldwide operations. It is the percentage of U.S.-treaty country trade of the U.S. company or office that is significant. In our sample, although only 25% of the parent companys total trade is with the U.S., 100% of the U.S. companys trade is between the U.S. and Germany. Also, it is a good idea, as here, to specify the number of U.S. workers employed by the treaty company. Paragraph 4. Specify the duties to be filled by the treaty alien and the aliens qualifications to fulfill those duties. Paragraph 5. Specify that the employment will be temporary, and set forth the annual salary to be paid to the alien. Documentation for Sample Letter 4-1 Following is a summary of the relevant documentation that should accompany Sample Letter 4-1. You should come back and review this material after reading 4:17 on supporting documentation. German Manufacturing Companys annual report Articles of Incorporation of GMC, Inc. Report from the accounting firm of GMC, Inc., regarding the dollar volume of trade over the last five years Although no more than this documentation would be needed in this case, for a smaller and less well-known company the better course would be to submit further documentation, such as: an accountants statement for the parent company an accountants statement for the U.S. company a certified statement from the secretary of the corporation or accountant on stock ownership contracts showing an ongoing need and market for the product 2012 Thomson Reuters. No claim to original U.S. Government Works. 35
IRS Form 941 to show the number of employees on the payroll bills of lading, customs receipts, letters of credit, insurance papers documenting commodities imported, purchase orders, and carrier inventories may also document trade with smaller companies that lack a sufficiently-detailed annual report (b). Sample Letter 4-2: Letter supporting application for E-2 treaty investor visa United States Consulate Nonimmigrant Visa Section London, England Re: Application for E-2 Treaty Investor Visa of Ms. Roberta JONES Dear Sir or Madam: This letter is submitted by Consolidated Stores, Ltd., in support of the above-captioned visa application. The application is made pursuant to the treaty of commerce and navigation between the United States and the United Kingdom. Consolidated Stores, Ltd., is a British corporation engaged in the ownership and management of twenty retail outlets in the United Kingdom specializing in sporting goods. Consolidated Stores, Ltd., is a privately-held corporation, whose ten shareholders are all British nationals (see attached accountants statement). During the last fiscal year, our company attained a net income of $2 million (U.S.) on sales of $25 million (U.S.). Our company holds 60% of the shares in British Sporting Goods, Inc., a U.S. corporation incorporated under the laws of the State of New York. The other 40% of the shares are held by U.S. Sporting Goods, Inc., a U.S. corporation. British Sporting Goods was incorporated for the express purpose of establishing a chain of sporting goods stores in the United States. In furtherance of this endeavor, Consolidated Stores, Ltd., has invested $3 million (U.S.) in this enterprise, while U.S. Sporting Goods has invested $2 million (U.S.). These facts are all demonstrated in the attached articles of incorporation and corporate minutes of the U.S. company, together with the attached accountants statement showing initial capitalization of the company. Our $3 million (U.S.) investment in British Sporting Goods, Inc., is made up of $1 million (U.S.) put up directly by our company and $2 million in bank loans for which Consolidated Stores, Ltd., is fully and solely liable. With this initial capitalization, British Sporting Goods, Inc., has established three retail outlets in Detroit, New York, and Philadelphia. These outlets have involved the purchase of two sites, valued at $250,000 and $200,000 (U.S.), respectively; the third site is leased. Inventory purchases to date have totaled $1 million (U.S.). The initial investment has also gone toward the purchase of warehouse facilities outside of New York, at a cost of $250,000 (U.S.). Under the current plan between our company and U.S. Sporting Goods, Inc., we will open at least five more stores through the U.S. subsidiary by [date] . British Sporting Goods, Inc., has already provided employment for 150 full-time U.S. workers and 100 part-time workers. The projected new stores will require further hiring of 100 employees. We intend to send Ms. Jones, a British national, to work for British Sporting Goods, Inc., in the capacity of General Manager. Ms. Jones, in that capacity, will be in charge of the day-to-day operations of all three stores, as well as the opening of the projected new retail outlets. This job entails responsibility for maintaining inventories, distribution, sales, employee relations, and all other aspects of day-to-day operation of the U.S. outlets. Ms. Jones is well qualified to handle this position, based on her experience with our company over the last ten years. Ms. Jones commenced employment with our company as the manager of one of our retail outlets in the United Kingdom, and has progressed with our company to her current position as Vice President in charge of Inventory and Distribution. These skills will be particularly useful in her proposed position with the U.S. company, since the coordination of inventory purchase and distribution is one of the major
problem areas in any new retail operation involving sites covering a large geographical area. We believe that, based on the foregoing facts, Ms. Jones is fully qualified to be accorded treaty investor status in order to serve in the United States in this managerial capacity. She will be assigned temporarily to the United States at an initial annual salary of $25,000 (U.S.). Sincerely, Robert Smith President, Consolidated Stores, Ltd. Analysis of Sample Letter 4-2: Sample Letter 4-2, an E-2 cover letter, is a model for those situations in which the investment has already been undertaken and has begun operation. It also involves a treaty aliens being sent to the United States in a managerial role. Paragraph 1. Refer to the relevant treaty. Paragraph 2. Establish the background and credentials of the company, including the type of business in which the company is engaged. Paragraph 3. Establish the ownership of the company and the amount of the investment involved. Paragraph 4. Give details regarding the source of the money invested and the type of financial transactions making up the investment. Paragraph 5. Specify future plans involving the investment, indicating its viability and the scope of employment of U.S. workers. Paragraph 6. Specify the duties to be filled by the treaty alien and the aliens qualifications to fulfill those duties. Paragraph 7. Specify that the employment will be temporary, and set forth the annual salary to be paid the alien. Paragraph 8. Specify the duties to be filled by the treaty alien and the aliens qualifications to fulfill those duties. Paragraph 9. 2012 Thomson Reuters. No claim to original U.S. Government Works. 37
Specify the duties to be filled by the treaty alien and the aliens qualifications to fulfill those duties. Paragraph 10. Specify the duties to be filled by the treaty alien and the aliens qualifications to fulfill those duties. Documentation for Sample Letter 4-2 Following is a summary of the relevant documentation that should accompany Sample Letter 4-2. You should come back and review this material after reading 4:17 on supporting documentation. annual report of Consolidated Stores, Ltd. accountants statement of stock ownership of Consolidated Stores, Ltd. articles of incorporation of British Sporting Goods, Inc. record of transfer of corporate funds from Consolidated Stores, Ltd., to British Sporting Goods, Inc. accountants statement of initial capitalization of British Sporting Goods, Inc. copy of Bank Loan Agreement with Consolidated Stores, Ltd., on behalf of British Sporting Goods, Inc. purchase agreements for U.S. property; lease agreement for U.S. property; various receipts showing inventory purchases; corporate bank records showing cash on hand all relevant quarterly statements of British Sporting Goods, Inc., and relevant federal corporate tax forms (for period since incorporation) personnel document that shows number of U.S. employees, e.g., payroll register
Note: Generally it is not necessary to submit supporting documentation regarding the duties and past experience and credentials of the treaty alien; the alien should be prepared, however, to provide any documentation requested, such as copies of degrees. A managerial employee should have credentials showing that he or she is qualified to manage; note, however, that recognition is likely to be made that an otherwise under-qualified manager with a special relationship to the principal investor (e.g., a family member), may be accorded E status because of the trust that the investor is likely to have in such a manager. (c). Sample Letter 4-3: Letter supporting application for E-2 treaty investor visa Treaty Visa Officer United States Consulate Nonimmigrant Visa Section London, United Kingdom Re: Application for E Visa Registration of RH Coolair, Inc. Application for E-2 Treaty Investor Visa for Ms. Lisa Harrington
Dear Sir or Madam: This letter is submitted in support of the application of Ms. Lisa Harrington for an E-2 Treaty Investor visa as an essential skill employee. The application is made pursuant to the treaty of commerce and navigation between the United States and the United Kingdom. The Company RH Air Conditioners Group Limited (RH Air Conditioners) was established in [date] when it changed its name from Clearwood Limited. Located in Sheffield, England, RH is a holding company for a group of companies engaged in the manufacture and sale of cooling appliances in the United Kingdom, Europe, and the United States. RH Air Conditioners consolidated companies currently include RH Limited, Air Conditioners Ltd., Coldair Limited, ABC Engineering Ltd., and Refrigerators Limited, all incorporated in the United Kingdom. RH Refrigeration, Inc., was a wholly-owned subsidiary of RH Air Conditioners. Located in Vermont, it was established in [date] to assemble and distribute commercial air conditioners and refrigerators, using components from the United Kingdom. Coolair, Inc., formerly owned by ACT Refrigeration Products, Inc., manufactured air conditioners and refrigerators for residential and commercial use. In [date] , RH Coolair, Inc. (RH) was established through the merger of RH Refrigeration, Inc., and Coolair, Inc. RH, located in 1515 Mockingbird Lane, Boston, Massachusetts, is currently owned as follows: 51% .25% .25% 48.5% by Mr. David Harrington (a British national) by Ms. Lisa Harrington (a British national) by Mr. William Hill (a United States national) by RH Limited (wholly-owned by RH Air Conditioners)
The initial investment in RH, made in [date] , involved the purchase of the assets and assumption of the liabilities, of Coolair, Inc. for $2.1 million, plus a bank note of $5 million secured by the plant and fixtures of RH (this bank note is currently for $4 million). Since [date] , RH has been an ongoing entity with sales exceeding $10 million in [date] . We currently employ 50 people of which 35 are U.S. citizens and 15 are permanent residents of the United States. RH produces high-efficiency, environmentally-friendly air conditioners, refrigerators, and other cooling appliances for commercial and residential use. We currently distribute our products through wholesale distributors in the United States, Canada and Korea. In recent years our market share has declined. While some of this decline is due to the downturn in the 2012 Thomson Reuters. No claim to original U.S. Government Works. 39
economy, we have identified that part of this decline has occurred due to a growing concern among our distributors as to the viability of our unique products. We attribute this concern to a lack of understanding of our products and the advanced features built into them to ensure risk-free operation. Also, we are currently developing a new product which is scheduled to go to market in the near future. Our currently products involve hydronic cooling requiring separate piping systems. Our new product can be hooked into existing ductwork to cool buildings. Our research indicates the potential for a market for this unit, and we anticipate that this product will help us to expand our market capabilities, if it is properly marketed. To regain our market share, improve our image with wholesale distributors and customers alike, and to look towards further expansion in domestic and international markets, we require the expertise of a well-qualified Marketing Manager, familiar with our markets and our products, who will assist us in moving our business forward. The Position Until recently, the responsibilities for marketing our products was combined with the sales function, and headed by Mr. Mark Thompson whos title was Manager, Sales and Marketing. Mr. Thompson has left our organization. His departure has caused us to rethink our position. We have decided to aggressively pursue our marketing efforts while continuing our thrust for improved sales. To this end, we have split the sales and marketing functions. Currently, we are actively seeking a Sales Manager to join our organization. In addition, we are seeking the services of Ms. Lisa Harrington, a British national for whom this application is made, to serve in the key position of Marketing Manager. As Marketing Manager, Ms. Harrington will report directly to me, the President and Chief Executive Officer of RH, and will direct the activities of the Marketing and Customer Service Departments and staff (see Organization Chart attached). In this regard, she will be responsible for analyzing our current domestic and international markets and creating programs to increase sales volume and expand market share. She will also be responsible for educating the marketplace about our products by creating and maintaining brand awareness and product knowledge. Furthermore, she will review and monitor our distribution channels to ensure that they are operating effectively and efficiently. To assist her in these efforts, Ms. Harrington will be responsible for hiring two Product Managers. Ms. Harringtons responsibilities will include Promotions, Market Statistics, Market Strategies, Education and Communications, and Customer Service. Each of these responsibilities is explained below. Promotion: Ms. Harrington will be responsible for creating and implementing an ongoing advertising schedule for trade publications, and will track their effectiveness. She will also establish and implement an ongoing trade show schedule, evaluating the coverage achieved and results obtained from each show attended. In addition, she will work with Advertising and Promotions firms to develop literature, advertisements, and incentive pieces as needed, create point of sale materials for wholesaler showrooms and counter areas, and develop and implement sales promotions when and where needed. Furthermore, she will participate in customer counter days and other customer related activities, and will establish and maintain public relations programs and materials including editorials, press releases and case histories. Market Statistics: Ms. Harrington will develop and maintain a method of tracking and reporting territorial and regional sales with respect to quotas, productivity and currently market trends, while ensuring that we are taking advantage of all market advancement opportunities and monitoring market declines. In addition, she will update and maintain our competitive literature files, and maintain and document information on our competitors successes and failures, new products, and market strongholds. Furthermore, she will be responsible for forecasting currently and long-term sales objectives with the help of sales personnel, distributors and representatives. Market Strategies: In this area, Ms. Harrington will be responsible for specific product placement which involves identifying which markets our products are best suited for, and promoting them in these areas. She will also be responsible for pricing our products within each market, and for evaluating our distribution base to ensure that we have thorough coverage throughout our markets. In addition, she will evaluate our wholesalers to ensure that they are qualified to sell our products and committed to our product line. Education and Communications: Our company needs an aggressive sales training program targeted toward our wholesalers and their customers that will help use to establish a sizable customer base that is educated and loyal to our products. Ms. Harrington will be responsible for developing and running this program. In addition, she will be
responsible for producing, distributing, and updating videos on selling, installing and maintaining our products, and will update materials used in presentations given by RHs staff and representatives at customer meetings. She will also create vehicles for relaying current news and events to our field force, allowing them to provide timely responses to critical issues. Customer Service: Ms. Harrington will oversee and provide direction to our Customer Service Department. In this regard, she will be responsible for ensuring quality customer service and customer satisfaction. In addition, she will be responsible for maintaining our direct mail, lead distribution and telemarketing follow-up programs, and will design and implement new policies for co-op advertising, personal use of our products, donations, Return Materials Orders and labor claims. To ensure the proper level of service is provided, Ms. Harrington will be responsible for increasing staff in the Customer Service Department as needed. To satisfactorily perform in the position of Marketing Manager for our organization, we require an individual with proprietary knowledge of: (1) our patented products including their construction, installation, operation and service requirements; (2) our internal structure including our corporate mission and focus, and our decision-making processes; (3) our domestic and international markets including our sales and marketing strategies, position and objectives; and (4) our financial position including our pricing structures, incentives, customer discounts and costs. Aliens Qualifications Ms. Harrington is uniquely qualified to handle the position of Marketing Manager for RH based on her expertise in both the United Kingdom and in the United States. In [date] , after completing studies in business and management in the United Kingdom, she joined ABC Advertising in London. During the year she worked at ABC, Ms. Harrington gained experience in industrial marketing by developing corporate and product identities, identifying target consumer categories for various products, and developing concepts for strategic advertising campaigns. In [date] , Ms. Harrington joined the Marketing Department of RH Air Conditioners. Reporting directly to the Marketing Director, Ms. Harrington developed marketing programs and identified unique markets for RHs air conditioners, refrigerators and other cooling products. To this end, she received training in RH product designs and uses in various markets, marketing and promotion strategies and positioning for each product, and customer service activities. In [date] , while working in the Marketing Department at RH Air Conditioners, Ms. Harrington was asked to assist in evaluating and forecasting the potential for acceptance and success of the RH line of cooling products if they were to be sole in the United Kingdom and other European markets. To this end, Ms. Harrington was sent to RH in the United States to be trained in: (1) the design, manufacture, installation, and servicing of our products; (2) our sales and marketing programs, techniques, and strategies; and (3) our pricing structures, costs, promotions, and incentive programs. Ms. Harringtons training program in the United States consisted of the following: (1) Attending training sessions with engineers and customers, under the supervision and guidance of Jim McNeilTechnical Services Manager, designed to provide an understanding of all aspects of product installation, start-up, and on-going service requirements. Ms. Harrington also traveled with field engineers to job sites to gain insight into customer problems and field service requirements. 2012 Thomson Reuters. No claim to original U.S. Government Works. 41
(2) Training with Mark Thompson, National Sales Manager, and designated individuals within the Marketing and Sales functions focusing on structure, effectiveness and implementation of advertising strategies and campaigns, promotion materials and events, trade shows and their effectiveness, customer relation activities, marketing strategies, and sales quotas and statistics. (3) Learning about the design features and production of our products from Sam Gentile, Vice President of Manufacturing. (4) Gaining an understanding of our pricing and cost structures, our discount and incentive programs, and our overall organization structure from Guy Smiley, Controller. While in the United States, Ms. Harrington received excellent evaluations her trainers. These reports were forwarded to her Director in the United Kingdom. Upon completion of her training, and after finishing her market evaluation study, Ms. Harrington was identified as the individual we needed to help our organization move forward to recapture market share and to position ourselves for future growth and expansion. Terms of Employment Ms. Harrington is a British national, currently employed by RH Air Conditioners, whom we wish to bring to the United States, on a temporary basis, as an essential skill employee. Currently, there are no E-1 or E-2 visa holders working for our company, and Ms. Harrington will not be replacing an E visa holder. As compensation for her services, Ms. Harrington will receive an annual salary of $50,000 plus the standard company benefits package. We respectfully request your kind consideration and registration of RH as a treaty investor firm, and your approval of a nonimmigrant E-2 visa on behalf of Ms. Harrington. Sincerely, Charles Smith President and Chief Executive Officer RH Coolair, Inc. Analysis of Sample Letter 4-3: Sample Letter 4-3 is another E-2 support letter submitted by an investment enterprise already in existence. Note also that the treaty alien in this case is one whose skills are considered essential to the business. Although Sample Letter 4-3 is much longer than the other treaty-investor sample letter, it contains essentially the same elements in the same order. Paragraph 1. Refer to the relevant treaty. The Investment Enterprise. Establish the ownership of the business, the amount of the investment, the type of business involved in the investment, and the sufficiency of the invested amount for that type of business. Also detail the source of the money invested, the type of financial transactions making up the investment, and any future transactions that will make up the investment total. Also set out the sales income and number of U.S. workers employed by the enterprise. The Position. Specify duties to be performed by the treaty alien including a discussion of the special credentials to perform the stated job duties. The Aliens Qualifications. Specify the aliens qualifications to fulfill the required duties and a description of the basis for the aliens selection for the position.
Terms of Employment. Specify that the employment will be temporary, and set forth the annual salary to be paid the alien. Documentation for Sample Letter 4-3 Following is a summary of the relevant documentation that should accompany Sample Letter 4-3. See 4:17 for a full discussion on supporting documentation. articles of incorporation of the U.S. company proof of nationality of investment enterprise (such as a copy of the passport of persons who own at least 50% of the stock of the corporation) proof of nationality of essential skills employee (e.g., copy of aliens passport) evidence that the investment is active, that it is substantial and that it is not marginal (e.g., statement of stockholders income, balance sheet for company showing amount of stockholder investment, revolving credits notes or security agreements on the assets of company, tax returns for company, statement from accounting firm on current value of company, employer statement of wages paid to employees) evidence of aliens qualifications and evidence of selection process (e.g., copy of aliens resume and evidence of prior recruitment for position and unavailability of U.S. workers) Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:17 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status B. The Application Papers References 4:17. Supporting documentation
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Supporting documentation is a crucial part of the treaty visa application because the conclusory statements of the company or visa applicant will not necessarily be accepted at face value, especially in the instance of a relatively small or new investment. Although documentation has already been covered to some extent in the discussion of sample cover letters, the following information will serve as a valuable summary and quick reference for supporting documentation. Note that the clear presentation of supporting documentation is a crucial factor in getting the visa application approved. Taking the time to present the supporting documentation clearly and concisely can pay off in the end. These steps should be taken: prepare an index of documents, including a short synopsis of each document organize the documents in a special binder with a table of contents and with tabs designating each one When you are sitting with the consular officer reviewing the case and you refer him or her to the key documents quickly and easily, you will see how important these steps are for presenting your case and making the right impression. As noted, many consular posts will require this extensive documentation to be prescreened before the visa interview (in a process known as registration) and these posts will retain the documentation establishing the eligibility of the enterprise. If the company is already registered, a registration letter from the post should be submitted along with evidence regarding the position to be filled and the applicants qualifications. (a). Documentation for treaty-trader (E-1) applications A treaty-trader (E-1) application must include documentation for each of the following points: the majority ownership of the company seeking treaty status the type of trade conducted by the company the volume of trade, including the percentage of that volume between the U.S. and the treaty country the prospective duties of the visa applicant the qualifications of the applicant for those duties No proof needs to be submitted regarding the existence of the relevant treaty; the other essential elementthe nationality of the applicantis established by his or her passport, which must be submitted with every nonimmigrant application in order for the visa to be affixed to it. Following is an examination of the type of proof that is sufficient for each of the above points. Company ownership
4:17. Supporting documentation, Immigr. Proc. Handbook 4:17
Company ownership can be established by a certification from the secretary of the corporation of all shareholders of record. In a small corporation, in which the shareholders are the same as in the articles of incorporation, the minutes of the first meeting of the Board of Directors can also be submitted to show the identity and percentage ownership of the shareholders. An independently certified statement from the companys accounting firm may also be submitted, and might be required in situations in which some doubt exists regarding ownership. For publicly traded companies, an affirmation on company stationery of the companys nationality should be sufficient. Type of trade conducted by the company Normally, the companys own affirmations on this score are sufficient, but an annual report or other company brochures that outline the nature of the companys business can be a useful tool in concisely presenting the enterprise to the consular officer. If licenses are required to conduct trade in the field in which the company operates, copies of the necessary papers would also demonstrate the nature of the companys business. Volume of trade, including the percentage of U.S.-treaty country trade This information can be verified from sales reports, shipping records, and accountants quarterly statements, such as profit-loss statements. Because one of the tests of substantial trade is conducting a continuous course of trading activity over time, the reports of the past several years are valuable aids in determining this issue. Prospective duties of the visa applicant Normally the companys affirmation on this point will be accepted. If, however, the company is large enough to have personnel charts setting forth the hierarchy of corporate positions, these charts can be submitted, together with any formal job descriptions or specifications kept on the position by the companys personnel office. Increasingly, consulates are closely scrutinizing the type of duties to be performed by the visa applicant to assure that they qualify the applicant for E status. Consulates are becoming more stringent in the application of the applicable standards, as is also the case for aliens seeking to qualify in the L intracompany transferee category. Companies should be prepared to document that the position involves managerial or executive duties or essential skills that are key to the companys operation or business. Qualifications of the visa applicant for fulfilling those duties Again, the companys affirmations on this point can generally be accepted. However, the visa applicant should be prepared to produce documentation of his or her credentials, such as letters from former employers attesting to the applicants periods of employment, and certified copies of school transcripts and any degrees awarded. (b). Documentation for treaty-investor (E-2) applicants A treaty-investor (E-2) application must include documentation for each of the following points: the majority ownership of the company seeking treaty status the type of business in which the company is or will be engaged the type of financial transactions that make up the investment the prospects for the investment, including any business already consummated, and the number of U.S. workers to be employed the duties to be filled by the alien the aliens qualifications to fill those duties As the previous sample letters illustrate, the smaller investor and the investor still in the process of putting together the investment must present significantly more documentation to convince the consular officers that an actual viable business is being established, and not just a paper or fictitious company. Following is an examination of the types of proof that are sufficient for each of the above points. Company ownership Company ownership can be established by a certification from the secretary of the corporation of all shareholders of record. In a small corporation, in which the shareholders are the same as in the articles of incorporation, the minutes of the first meeting of the Board of Directors can also be submitted to show the identity and percentage ownership of the shareholders. An independently certified statement from the companys accounting firm may also be submitted, and might 2012 Thomson Reuters. No claim to original U.S. Government Works. 45
be required, in situations in which some doubt exists regarding ownership. For publicly traded companies, an affirmation on company stationery of the companys nationality should be sufficient. Type of business The type of business should be demonstrable from the articles of incorporation. Otherwise, this point can be made by any brochures or promotional materials that have been created, copies of any licenses required to conduct the type of business in question, or any other documentation that may be required for the case, such as purchase receipts for inventory or equipment essential to conduct the business. Amount of investment, including source of the money Every part of the total amount put into the investment must be documented. Any bank loans must be evidenced by the loan agreements executed by the investor and must demonstrate the investors personal liability. The transfer of funds into the U.S. can be demonstrated by bank statements showing the electronic transfer of funds from a foreign bank to a U.S. bank or by statements showing the withdrawal of funds from a foreign bank and their deposit into a U.S. account. The funds must be placed into a corporate account for the investment in order to be attributable to the investment. A personal bank statement of the investor, although possibly showing the funds that are ultimately available for backing up the investment, does not evidence funds at risk and cannot be counted toward the initial amount of the investment. When over $10,000 in currency or bearer instruments is physically brought into the United States, Customs Service Form 4790 must be completed by the person carrying it. Consular officers have on occasion asked to see this form, and it should be available to provide to the consulate if some of the funds making up the investment were physically brought into the United States. Types of financial transactions making up the investment This documentation includes receipts for purchases of equipment, real property, and start-up inventory; receipts demonstrating costs incurred in establishing the business (i.e., telephone costs, costs of any requisite licenses, initial rental costs of equipment, etc.); and receipts for the cost of capital improvements, statements demonstrating the valuation of goods or equipment transferred to the U.S., or property assigned to the corporation. See 4:12 for a review of the acceptable components of an investment. Prospects for the investment As already indicated with the sample letters, this is a very important item of proof. Any sales contracts already signed should be submitted to demonstrate the viability of the investment enterprise. If no contracts have been signed and no sales made, any documentation such as letters showing ongoing negotiations will need to be submitted. As already suggested, a market research study by a professional consulting firm may, in the absence of other solid evidence, be convincing on the issue of the companys viability. This is particularly important when the investment enterprise has not yet engaged any U.S. workers. Without any U.S. workers already on the payroll, the documents submitted to the consular officer must show that the enterprise has sufficient resources and enough prospects of viability to support the hiring of U.S. workers in the foreseeable future. Note that a consular officer may well require signed contracts to show that the investment is active and close to commencement. Duties to be filled by the alien Normally, the employers affirmations on this point are acceptable. However, any corporate personnel materials available to substantiate the affirmations, such as personnel charts or job descriptions, should be submitted. Increasingly, consulates are closely scrutinizing the type of duties to be performed by the visa applicant to assure that they qualify the applicant for E status. Consulates are becoming more stringent in the application of the applicable standards, as is also the case for aliens seeking to qualify in the L intracompany transferee category. Companies should be prepared to document that the position involves managerial or executive duties or essential skills that are key to the companys operation or business. Aliens qualifications to fulfill the duties Again, the employers statements in this respect can normally be accepted. However, the alien should be prepared to submit employers letters verifying experience and any copies of degrees or school transcripts for educational background cited by the employer.
4:17. Supporting documentation, Immigr. Proc. Handbook 4:17

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Immigr. Proc. Handbook 4:18 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status B. The Application Papers References
4:18. E supplement to the nonimmigrant visa application (DS-156E)
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Form DS-156E, which consists of three pages, contains three basic components: (1) a business profile of the treaty enterprise; (2) information about the staffing of the U.S. entity; and (3) information about the individual visa applicant, including his or her qualifications and details about the specific U.S. position to be filled by the applicant. Of particular interest is the forms request for information to determine the enterprises reliance on treaty nationals to staff the enterprise. The form requests a complete enumeration of all personnel by category: managerial/executive, specialized/essential, and all other employees. Each category must be further divided into nationals of the treaty country, U.S. citizens and permanent residents, and thirdcountry nationals. All parts of the form must be completed for initial company registrations or for company re-registrations. For companies that are already registered, only Part III of the form is required (relating to the individual visa applicant). A paper Form DS-156E is required if the applicant is applying for an E-1 treaty trader visa or an E-2 treaty investor visa as an executive, manager, or essential employee. If the applicant is applying for an E-2 treaty investor visa as a principal investor, he or she does not need to fill out Form DS-156E. In the future, the Department of State will issue a fully electronic nonimmigrant treaty trader/investor form (Form DS-161), but it has not done so yet. Form DS-156E is illustrated below as Sample Form 4-1. Analysis of the form follows the illustration. Applicants for E visas should only use the OMB-approved DS-156E. The latest version of the form is dated 06-2011. The form is marked as rendering prior editions obsolete. (a). Sample Form 4-1: Form DS-156E Nonimmigrant Treaty Trader/Investor Application 0100090000035704000000001a03000000001a03000026060f002a06574d464301000000000001001fd300000000010000000 80600000000000008060000010000006c0000000000000000000000140000001400000000000000000000002802000029020 00020454d4600000100080600000f000000010000000000000000000000000000000005000000040000510100000e01000000 000000000000000000000068240500b01e0400460000002c00000020000000454d462b014001001c000000100000000210c0d b0100000060000000600000004600000000020000f4010000454d462b224004000c000000000000001e4009000c0000000000 0000244001000c000000000000003040020010000000040000000000803f214007000c0000000000000008400005580100004 c0100000210c0db01000000000000000000000000000000000000000100000089504e470d0a1a0a0000000d49484452000000 10000000100403000000eddde25200000030504c5445ffffffd6d6dac6c6caec5e60ec7a7cababae97979beef4f5b22425de4446ef 989aceced2bcbcc0ecedeffe3e41e6e6e9a20180540000000174524e530040e6d866000000097048597300000b1300000b13010 09a9c18000000964944415478da63d4aa9a9ac0c0c070846131c33b20e4c86158cc07041c1d314cdc9f1e3030fc6048635ac0c7f 0e901074326a373d87f860f0c0c9a4c67d2521fad0fcd6460026afdf979010303334704e75b11b5172011b695064ccd1f9818fefd 4db91cf34c8b99edcf7bb3c04f66192c0cccabc3631904d45918d837fce562f825c5cc6e7c4841e52007330b930b831bc3aa9fd30 1a47b2d39a3ac6bd40000000049454e44ae4260820000000840010824000000180000000210c0db0100000003000000000000
4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....
0000000000000000001b40004034000000280000000100000002000000000000bf000000bf000080410000804103000000000 0000015000000000015002100000008000000620000000c00000001000000150000000c00000004000000150000000c000000 04000000460000001400000008000000544e50500601000051000000c00000000000000000000000140000001400000000000 000000000000000000000000000100000001000000050000000300000008000000040000000000000008600ee001500000015 0000002800000010000000100000000100010000000000000000000000000000000000000000000000000000000000ffffff00 7fff740a7fff494c7fff740a7fff00007fff00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc7 0000ffff000051000000bc01000000000000000000001400000014000000000000000000000000000000000000001000000010 000000500000006c000000bc0000000001000000000000c600880015000000150000002800000010000000100000000100080 000000000000000000000000000000000110000000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de0 0aeabab00efedec00413efe002524b2009b979700c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c 0c07070c010810101008080c0c07070b0b0b0b0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c070 20108100e0304080f0f0f0f0e0d0d020d010f08080f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0 f1003021003030e0d0e0d0e010f0f0f0f081005020310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a 0a0a0a0a0a0d0e04090109090901010909010a0a0a020d0309010109090109010901010a0a0c0203050109010901090109010a 0a0a070c030501010909010109090101010a0b0c02030304050606060606060606060708460000001400000008000000544e5 050070100004c0000006400000000000000000000001400000014000000000000000000000015000000150000002900aa0000 000000000000000000803f00000000000000000000803f0000000000000000000000000000000000000000000000000000000 000000000220000000c000000ffffffff460000001c00000010000000454d462b024000000c000000000000000e000000140000 000000000010000000140000000400000003010800050000000b0200000000050000000c0215001500030000001e000400000 007010400040000000701040045000000410b8600ee0010001000000000001500150000000000280000001000000010000000 0100010000000000000000000000000000000000000000000000000000000000ffffff007fff740a7fff494c7fff740a7fff00007fff 00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc70000ffff0000c3000000410bc60088001 0001000000000001500150000000000280000001000000010000000010008000000000000000000000000000000000011000 0000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de00aeabab00efedec00413efe002524b2009b97970 0c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c0c07070c010810101008080c0c07070b0b0b0b 0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c07020108100e0304080f0f0f0f0e0d0d020d010f080 80f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0f1003021003030e0d0e0d0e010f0f0f0f0810050 20310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a0a0a0a0a0a0d0e04090109090901010909010a0 a0a020d0309010109090109010901010a0a0c0203050109010901090109010a0a0a070c030501010909010109090101010a0b 0c020303040506060606060606060607080c00000040092900aa000000000000001500150000000000040000002701ffff0300 00000000Image 1 within document in PDF format. Analysis of Sample Form 4-1
Name of U.S. entity. Part I of Form DS-156E solicits information about the trading company or the investment enterprise located in the United States that will employ the visa applicant. The name of the U.S. business entity that will employ the E visa applicant must be typed in these spaces. Special note on treaty enterprises . With regard to E-1 traders it is possible that the trading company in the United States is sole proprietorship, so that an individual name could be listed as the employer. On the other hand, the enterprise should be a separate business entity from an E-2 investor because actual funds must be committed to the U.S. enterprise. These funds cannot remain in possession and control of the treaty investor as his or her personal property; sole proprietorships, therefore, are unlikely to qualify as acceptable business entities for E-2 purposes, and an individual should not be listed as the employer for E-2 purposes. Type of business enterprise. Indicate here whether the U.S. employer is a: (1) corporation (other than one majorityowned by another entity); (2) privately owned (sole proprietorship); (3) branch/liaison office of a business entity (i.e., an operating division or office of an organization based in a different location); (4) a joint venture company (two individuals or entities each own 50% of the company); (5) a partnership; (6) a subsidiary (a corporate entity majorityowned by another entity); or (7) other type of entity (also specify type, e.g., franchise).
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In many situations, the U.S. enterprise is a subsidiary, branch or a joint venture of the foreign entity which had established the enterprise to conduct trade or as an investment in the United States. In all such cases, the nationality of the U.S. enterprise for E purposes will be the nationality of the foreign entity because the foreign entity owns at least 50% of the U.S. enterprise (the nationality of a company is the nationality of those persons or entities who own at least 50% of the stock of the corporation). Because the U.S. enterprise will have the same nationality as the foreign entity, this entity must in turn be at least 50% owned by persons who are nationals of a treaty country. If the foreign entity is a large, publicly held company that may have a difficult time establishing its nationality through stock ownership records, the foreign entity can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. Special note on sole proprietorships . With regard to E-1 traders it is possible that the trading company in the United States is sole proprietorship, so that an individual name could be listed as the employer. On the other hand, the enterprise should be a separate business entity from an E-2 investor because actual funds must be committed to the U.S. enterprise these funds cannot remain in possession and control of the treaty investors as his or her personal property; sole proprietorships, therefore, are unlikely to qualify as acceptable business entities for E-2 purposes, and an individual should not be listed as the employer for E-2 purposes. Address of headquarters, subsidiaries and branch offices of U.S. enterprise. The U.S. employer must list its address here. Start with the company headquarters, then include the addresses of any U.S. subsidiaries and/or branch offices. Also label each entry, i.e., headquarters, subsidiary, or branch office. Finally, specify a business telephone and fax number. Note that the employer must have a presence in the United States, and therefore, a U.S. address must be listed. It is clear that the treaty enterprise must already be in existence in the United States and either operating or close to operating. With regard to treaty traders, for example, it must be shown that the trading company filing the petition is engaging in substantial trade principally between the United States and the treaty country. See 4:11. With regard to treaty investors, the qualifying investment must be active; that is, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. An investment need not be fully operational in order for the investor or qualifying employees to receive an E-2 visa, but the active investment hurdle must be overcome. See 4:12 of the Handbook . Date and Place of Incorporation and Establishment. If the U.S. enterprise has been incorporated in the United States, include the date and place of incorporation as listed in the Article of Incorporation. The U.S. enterprise may be engaged in activity through a business form other than a corporation, particularly when the principal investor or trader is the sole owner of the business. In the latter case, include the date and place in which the U.S. enterprise was established in the United States. Note that the corporate form is the easiest to document for treaty purposes as discussed in 4:17 of the Handbook . Nature of the U.S. enterprise. Give an indication of the employers business activity by checking one (and only one) of these boxes. The company support letter will give additional background on the company. Special note on E-1 enterprises . With regard to the E-1 category, the U.S. enterprise must be engaged in trade. Trade can involve the exchange, purchase, or sale of goods or services. Services include economic activities with an output that does not encompass a tangible good. Among the businesses that could be included as enterprises trading in services are banking, insurance, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, and law firms. Businesses participating in a technology transfer are also engaged in trade for E-1
purposes, as long as title to the trade item passes from one entity to the other. In practice, application of this broad concept to business enterprises trading services could be difficult. The definition of trade is discussed in detail in 4:11 (a) of the Handbook . Describe business activity. A brief indication of the business activity is sufficient for this item. The company support letter will give additional background on the company. Special note on E-1 enterprises . With regard to the E-1 category, the U.S. enterprise must be engaged in trade. Trade can involve the exchange, purchase, or sale of goods or services. Services include economic activities with an output that does not encompass a tangible good. Among the businesses that could be included as enterprises trading in services are banking, insurance, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, and law firms. Businesses participating in a technology transfer are also engaged in trade for E-1 purposes, as long as title to the trade item passes from one entity to the other. In practice, application of this broad concept to business enterprises trading services could be difficult. The definition of trade is discussed in detail in 4:11 (a) of the Handbook . Name and address of foreign parent. If the U.S. enterprise is a subsidiary of a foreign entity, provide the name, telephone number, and fax number of the foreign entity and the entitys foreign address. Such situations are not uncommon since often a foreign entity establishes a U.S. subsidiary which may in turn seek the services of managerial or technical support personnel working for the foreign entity to start up the U.S. enterprise or to oversee the U.S. operation in its initial stages. For this reason, the L-1 category is a viable alternative to the E visa category when an individual investor or trader does not qualify for treaty consideration, e.g., the treaty alien is not a citizen of the treaty country. The L-1 category is discussed in detail in Ch 5 of this Handbook . Nationality of ownership. In these spaces, list the name of the owner or owners of the U.S. enterprise, the nationality of the owner(s), the immigration status of the owner(s) if such owner is an individual, and the percentage of ownership of the U.S. enterprise. The U.S.-based treaty enterprise or business entity must have the same nationality as a treaty country. The nationality of a company engaging in trade or investment is the nationality of those persons or business entities who own at least 50% of the stock of the corporation. The nationality of a business entity which has an ownership interest in the U.S. enterprise is in turn determined by the nationality of those persons who own at least 50% of the business entity. For large, publicly held companies that may have a difficult time establishing their nationality through stock ownership records, the firm can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. The nationality of the persons owning the corporate stock is their country of citizenship. Foreign nationals who are also U.S. permanent residents cannot be counted toward determining at least 50% ownership. If the information solicited in this part shows that the U.S. enterprise is not owned at least 50% by entities or individuals (excluding permanent residents) that have the same nationality of a treaty country, the U.S. enterprise cannot seek E status for its principals or employees. Guidelines regarding the treaty companys ownership are discussed in detail in 4:9 of the Handbook . Evidence required to establish appropriate ownership is discussed in detail in 4:17 of the 2012 Thomson Reuters. No claim to original U.S. Government Works. 51
Handbook . Assets, liabilities, owners equity, and income. The year for which this financial information pertains must first be listed. Specify whether it is a calendar year or fiscal year. In addition, in the spaces provided, list the total assets of U.S. business (based current cash or historical cost), the total liabilities, owners equity, the total annual income of the enterprise, and the income after taxes. The owners equity refers to paid-in capital plus retained earnings in the case of a corporation. In the case of a partnership, owners equity refers to the partners capital accounts. Finally, with regard to sole proprietorships, this term refers to the owners capital account. This information will be used by USCIS to determine whether the U.S. enterprise is operating or close to operating (in the case of investment enterprises). With regard to the E-1 category, at minimum, the trade must have already commenced prior to an application for a treaty-trader visa because of the requirement that the trading company demonstrate a continued course of trade. The information solicited in this part, therefore, will assure that the enterprise is already in existence and in operation. Note that the continued course of trade may have been conducted informally prior to the visa application rather than through an established trading enterprise, as long as trading has been established and exists at the time of the application. Note also that existing trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. This policy effectively permits the conferral of E-1 benefits before the trading company is in operation. The continued course of trade requirement is discussed in detail in 4:11 of the Handbook . With regard to treaty investors in the E-2 category, on the other hand, treaty investors may be issued E-2 visas when they are actively in the process of investing in the United States, and, therefore, the U.S. enterprise may not yet be generating income. A qualifying investment, however, must be active; that is, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. The investor, at a minimum, therefore, must show that the enterprise is close to commencement of operations, e.g., purchased assets, transferred assets, and cash committed to the use of the enterprise. What constitutes legitimate elements of a treaty investment is discussed in detail in 4:12 of the Handbook . Treaty Trader Information. If the DS-156E application is on behalf of an E-1 treaty trader, include information regarding the trade in this item. The year for which this information pertains must first be listed. Specify whether it is a calendar year or fiscal year and the termination date of the year in question. Next indicate the dollar value, number of transactions and percentage of total trade for each of the following trading activities: (1) imports from treaty country to U.S. business; (2) exports from U.S. business to treaty country; (3) imports from third countries to U.S. business; (4) exports from United States to third countries; and (5) domestic trade (items bought and sold in the United States). Also include the dollar value of domestic U.S. production/manufacturing and the number of transactions pertaining to such production. Finally, the dollar value of the annual gross trade and production of the U.S. enterprise (for the preceding year) should be specified as well as the total number of transactions for the year. The U.S. enterprise must be engaged in substantial trade principally between the United States and the treaty country. Whether trade is substantial is measured by: (1) the volume of trade; (2) the number of transactions; and (3) the continued course of trade. The flow of trade must be existing, continuous, and numerous. A single transaction, no matter how large in dollar value or protracted in time, does not constitute substantial trade. Although the monetary value of the trade item is a favorable factor, it is more important to have numerous transactions. Because the flow must be existing and continuous, the existence of commitments for future trade is also important. Note that the continued course of trade may have been conducted informally prior to the change of status application rather than through an established trading enterprise, as long as trading has been established and exists at the time of the application. Note also that existing trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate
exchange of items of trade. This policy effectively permits the conferral of E-1 benefits before the trading company is in operation. The trade must not only be substantial, but it must also be principally between the United States and the treaty country, i.e., more than 50% of the total volume of international trade of the U.S. office must consist of trade between the United States and the treaty country. Note that some difficulties may arise in determining which transactions of the treaty enterprise can be credited as U.S.-treaty country trade. This problem particularly arises with service enterprises. The requirement that the treaty enterprise engages in substantial trade principally between the United States and the treaty country is discussed in detail in 4:11 of the Handbook . E-2 treaty investors do not complete this item. Type of investment. With regard to E-2 visa applicants, state whether the investment involves or will involve: (1) the creation of a new business; (2) the purchase of an existing business; or (3) the continuation of an existing business. Remember that treaty investors may be issued E-2 visas when they are actively in the process of investing in the United States, and, therefore, the U.S. enterprise may not yet be in operation. A qualifying investment, however, must be active; that is, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. The investor, at a minimum, therefore, must show that the enterprise is close to commencement of operations, e.g., purchased assets, transferred assets, and cash committed to the use of the enterprise. What constitutes legitimate elements of a treaty investment is discussed in detail in 4:12 of the Handbook . Total investment. If the I-129 is being filed on behalf of an E-2 treaty investor, include the dollar amount of investment being made in the U.S. enterprise. Such investment may be in the form of cash committed to the U.S. enterprise (the funds must be placed into an escrow or a corporate account for the investment in order to be attributable to the investment). A personal bank statement of the investor does not evidence funds at risk and cannot be counted toward the initial amount of the investment. The investment may also be in the form of equipment or inventory purchased by the U.S. enterprise or transferred to the U.S. enterprise (i.e., purchased assets and transferred assets). A qualifying investment may also include buildings and land purchased by the U.S. enterprise. Other forms of investment may include loans secured by the investors own assets or unsecured loans granted on the basis of the investors signature. Include the dollar amount of each type of investment in the prior year (calendar year or fiscal year should be specified) and the total amount of each type of investment made (combining investments made in the preceding year and the dollar amount of investments made in prior years). This information will be used to determine whether the investment is active and substantial. To be considered active, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. For example, uncommitted funds in a bank account do not represent an active investment, unless enough other evidence of business activities exists to show that the funds are used in the routine operation of the business (payment of bills, purchase of inventories or equipment). Many common problems with the active investment question lie in situations in which the investor is actively in the process of investing but the investment has not yet become fully operational. An investment need not be fully operational in order for the investor or qualifying employees to receive E-2 visas. The active investment hurdle must be overcome, however. This question comes down to one of proof, and of submitting the correct supporting documents to show that an active investment is planned. See 4:17 of the Handbook . 2012 Thomson Reuters. No claim to original U.S. Government Works. 53
This information will also be used to determine whether the investment is substantial. The legacy INS and the State Department have reconfirmed that there is no minimum dollar amount necessary in order for the investment to be considered substantial. In order for an investment to be considered substantial, it must meet one of two tests: (1) it must be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses); or (2) it must be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses). The substantial investment requirement is discussed in detail in 4:12 of the Handbook . Source of investment. On a separate sheet, indicate the source of the money invested and the type of financial transactions making up the investment. Every part of the total amount put into the investment must be documented. Any bank loans must be evidenced by the loan agreements executed by the investor and must demonstrate the investors personal liability. The transfer of funds into the U.S. can be demonstrated by bank statements showing the electronic transfer of funds from a foreign bank to a U.S. bank or by statements showing the withdrawal of funds from a foreign bank and their deposit into a U.S. account. The funds must be placed into a corporate account for the investment in order to be attributable to the investment. A personal bank statement of the investor, although possibly showing the funds that are ultimately available for backing up the investment, does not evidence funds at risk and cannot be counted toward the initial amount of the investment. When over $10,000 in currency or bearer instruments are physically brought into the United States, Customs Service Form 4790 must be completed by the person carrying it. Consular officers have on occasion asked to see this form and it should be available to provide to the consulate if some of the funds making up the investment were physically brought into the United States. Type of personnel in the United States. Information concerning the employees currently working for the U.S. enterprise and the number of employees which will be hired in the future must be included in this part. The number of employees who are nationals of the treaty country and who are currently in E, H, or L-1 status must be listed in these spaces in the first, second or third columns depending on whether the employees are working in an executive or supervisory capacity, possess essential skills necessary for the operation of the U.S. enterprise, or fall into the other worker category. An estimate of the number of such employees that will be working for the enterprise in the following year must also be included. The same information must be provided with regard to employees who are: (1) U.S. citizens or permanent residents; or (2) third country nationals. In the last line list the total number of employees working in an executive or supervisory capacity, the total number of essential skill employees, and the total number of all other employees. This information will be used to determine whether the enterprise is staffing its operations completely or predominantly with nationals of the treaty country. The company cannot expect to staff its operation in the United States completely with nationals of the treaty country, although the proportion of foreign nationals employed at the start-up of an enterprise is acceptably higher because it is understood that much of the know-how and initial managerial support will come from abroad. Common sense is the rule: the closer to the top levels of management the position is, the more likely that the person filling the position will qualify for treaty-trader status. At lower levels, only those positions requiring a specialized, technical knowledge of the companys product not readily available among U.S. workers can be filled with aliens in treaty-trader status. In this latter situation, the company may be expected to train U.S. workers eventually to fill the technical positions; visas for technical staff will not be indefinitely renewed. If the enterprise is in its start-up stage and the number of employees is very small consisting mainly of other treaty aliens or L-1 aliens, supporting documentation should be submitted concerning the projected number of U.S. workers which will be hired in the future to staff the operations. This information will also be used to determine whether there is overstaffing with managers/supervisors. A company should not expect to bring in five or six managers to oversee just a handful of employees. Although there is no easy rule
of thumb to apply in determining how many managers and supervisors are sufficient to run an enterprise, some element of proportionality between the number of managers and supervisors and the total number of employees must be maintained. Consular officers frequently request information on the number of foreign managers in relation to domestic workers in the company. In E-2 cases, this information will also be used to determine the size of the investment enterprise, particularly whether it is marginal. The investment cannot be marginal in nature. The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the alien investor and the aliens family members. The capacity to employ U.S. workers must be realized within five years of the principal investors admission to the United States. Any business plans submitted with the visa application, therefore, must reflect that U.S. workers are currently employed by the enterprise or will be employed within five years. List of personnel. Include information regarding all employees of the U.S. enterprise holding executive, managerial, or specialist positions in the United States. The following information must be provided with regard to each individual: (1) his or her name; (2) his or her position and title; (3) the division/office in which he or she works; (4) the nationality of the individual; and (5) with regard to noncitizens, the individuals immigration status in the United States, the date the nonimmigrant or immigrant visa was issued, and the place of issuance. List of personnel. Include information regarding all employees of the U.S. enterprise holding executive, managerial, or specialist positions in the United States. The following information must be provided with regard to each individual: (1) his or her name; (2) his or her position and title; (3) the division/office in which he or she works; (4) the nationality of the individual; and (5) with regard to noncitizens, the individuals immigration status in the United States, the date the nonimmigrant or immigrant visa was issued, and the place of issuance. This information will be used to determine whether the enterprise is staffing its operations completely or predominantly with nationals of the treaty country. The company cannot expect to staff its operation in the United States completely with nationals of the treaty country, although the proportion of foreign nationals employed at the start-up of an enterprise is acceptably higher because it is understood that much of the know-how and initial managerial support will come from abroad. Common sense is the rule: the closer to the top levels of management the position is, the more likely that the person filling the position will qualify for treaty-trader status. At lower levels, only those positions requiring a specialized, technical knowledge of the companys product not readily available among U.S. workers can be filled with aliens in treaty-trader status. In this latter situation, the company may be expected to train U.S. workers eventually to fill the technical positions; visas for technical staff will not be indefinitely renewed. If the enterprise is in its start-up stage and the number of employees is very small consisting mainly of other treaty aliens or L-1 aliens, supporting documentation should be submitted concerning the projected number of U.S. workers which will be hired in the future to staff the operations. This information will also be used to determine whether there is overstaffing with managers/supervisors. A company should not expect to bring in five or six managers to oversee just a handful of employees. Although there is no easy rule of thumb to apply in determining how many managers and supervisors are sufficient to run an enterprise, some element of proportionality between the number of managers and supervisors and the total number of employees must be maintained. Consular officers frequently request information on the number of foreign managers in relation to domestic workers in the company. In E-2 cases, this information will also be used to determine the size of the investment enterprise, particularly whether it is marginal. The investment cannot be marginal in nature. The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the alien investor and the aliens family members. The capacity to employ U.S. workers must be realized within five years of the principal investors admission to the United States. Any business plans submitted with the visa application, therefore, must reflect that U.S. workers are currently employed by the enterprise or will be employed within five years.
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Name of applicant. The applicants name should match the name listed in his or her passport. Remember that principal investor or trader (the primary treaty alien) and employees of the treaty enterprise (the employee treaty aliens) must have the same nationality as the treaty enterprise. That is, they must qualify for treaty status under the same treaty as the treaty enterprise. Type of applicant. Indicate here the type of applicant filing the application (check one and only one box). Principal owner/investor/trader . Check this box if the alien owns the treaty enterprise. Note that if the applicant is applying for an E-2 visa as a principal investor, he or she does not need to fill out the DS-156E form. In E-2 principal investor cases, the DS-160 form solicits the relevant information to determine eligibility for an E-2 visa. Manager . An employee of an E-2 treaty enterprise may be classified as a treaty alien if the employee is coming to the United States in a managerial capacity to develop and direct the investment. Supervisor . An employee of a treaty trader or investor may be classified as a treaty alien if the employee is coming to the United States to engage in duties of a supervisory character. The supervisory element of the employees position must be a principal and primary function of the position and not an incidental or collateral function. A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of the enterprises operations and does not generally involve the direct supervision of low-level employees. Executive . An employee of a treaty trader or investor may be classified as a treaty alien if the employee is coming to the United States to engage in duties of an executive character. The executive element of the employees position must be a principal and primary function of the position and not an incidental or collateral function. Executive duties grant the employee ultimate control and responsibility for the enterprises overall operation or a major component of the operation. An executive position also provides the employee great authority to determine policy of and direction for the enterprise. Specialist . An employee of a treaty trader or investor may be classified as a treaty alien if the employee has special qualifications that make the services to be rendered essential to the successful or efficient operation of the enterprise. The essential nature of the aliens skills to the employing firm is determined by assessing: (1) the degree of proven expertise of the alien in the area of operations involved; (2) the uniqueness of the specific skill or aptitude; (3) the length of experience and/or training with the firm; (4) the period of training or other experience necessary to perform effectively the duties involved; and (5) the salary the special qualifications can command. Skills required to start up an enterprise may no longer be essential after initial operations are complete. Other skills are essential only in the short-term for the training of U.S. workers. Long-term essentiality, however, may be established in such areas as product improvement, quality control, or the provision of a service not generally available in the United States. Check this box only if long-term essentiality is posited, i.e., the employer will need the employees special skills on an ongoing basis. Start-up personnel and employees who will train U.S. workers should be included in the other worker
box. Other . This box may be checked for those employees who are necessary in the short term to start up the enterprise (i.e., start-up personnel) or to train U.S. workers. Present position and duties. Give the title of the aliens present position and list his or her duties for the position. The information included in this item is relevant to a determination of whether the applicant is qualified to perform the job duties of an executive, supervisor or essential skill employee. For example, if familiarity with the companys product, systems, or operations is alleged to be necessary for the position, the employee must possess the experience and training with the treaty enterprise or a related firm. The information will be also influential in determining whether the position is supervisory or executive in nature or the position is key to the companys operation or business. For example, if the applicant lacks any experience as an executive or supervisor, employers should anticipate greater scrutiny as to whether the position in the United States is executive or supervisory in nature. Name and address of employer. Include the name and address of the aliens present employer. In many situations the employer listed in this item will be a foreign employer related to the U.S. enterprise. Such situations are not uncommon since often a foreign entity establishes a U.S. branch or subsidiary which may in turn seek the services of managerial or technical support personnel working for the foreign entity to start up the U.S. enterprise or to oversee the U.S. operation in its initial stages. For this reason, the L-1 category is a viable alternative to the E visa category when an individual investor or trader does not qualify for treaty consideration, e.g., the treaty alien is not a citizen of the treaty country. The L-1 category is discussed in detail in Ch 5 of the Handbook . Note that if familiarity with the companys product, systems, or operations is alleged to be necessary for an essential skills position, the employee must possess the experience and training with the firm or a related firm. Years of experience. The number of years in which the applicant has been employed by his or her present employer must be listed here. In assessing essentiality of an employees skills (in the case of specialists), the length of experience and training with the firm will be considered so that the years of experience listed in this item may be significant in these cases. Education. List the applicants highest level of education including: (1) name of school; (2) his or her major area of study; (3) the degree earned; (4) the year in which the degree was obtained. Remember that the visa applicant must be qualified to fulfill the duties of an executive, supervisor or specialist. The information included in this item may be relevant as to that determination. Other relevant experience and education. Include any other experience, training or education possessed by the applicant that is relevant to the position in the United States. The information included in this item will aid the consular officer in the determination of whether the applicant is qualified to perform the job duties of an executive, supervisor or specialist. For example, if experience with a particular product, systems, or operation is alleged to be necessary for the position, the employee must possess the requisite 2012 Thomson Reuters. No claim to original U.S. Government Works. 57
experience. The information will be also influential in determining whether the position is supervisory or executive in nature or the position is key to the companys operation or business. For example, if the applicant lacks any experience as an executive or supervisor, employers should anticipate greater scrutiny as to whether the position in the United States is executive or supervisory in nature. Position in the United States. State the job title and list the duties of the position in the United States. If the treaty alien will work in an executive or supervisory capacity, include a description of the major component or function for which the executive or supervisor has ultimate control or supervision. Also include the names and titles of the employees that will be supervised by the applicant in the United States. If the treaty alien will work in an essential skill position in the United States, a description of the special skills essential to the U.S. enterprise must be included. Special note on supervisory or executive personnel . Treaty aliens are eligible for E-1 or E-2 status if they will work in an executive or supervisory capacity. A company should not expect to bring in five or six supervisors to oversee just a handful of employees. Although there is no easy rule of thumb to apply in determining how many supervisors are sufficient to run an enterprise, some element of proportionality between the number of supervisors and the total number of employees must be maintained. Note also that a supervisory position does not generally involve the direct supervision of low-level employees and instead entails the supervision of professional or other supervisory personnel. In general, the closer to the top levels of management the position is, the more likely that the person is filling such a position. Other factors that must be considered include the degree to which (1) the salary and job title are commensurate with executive or supervisory employment; (2) the alien exercises ultimate control and responsibility for the operation or a major component of the enterprise; (3) the alien has authority to set policies and goals for the operation; (4) the alien possesses executive and supervisory skills and experience; and (5) the alien will perform routine work usually performed by staff employees (such functions may only be of an incidental nature). Supervisory or executive duties must be the employees primary function, with other job duties being incidental to this primary function. See 4:11 of the Handbook . Special note regarding essential skills positions. Under State Department standards, the availability of U.S. workers, transferability of skills, and the uniqueness of the skills are all relevant factors in determining whether to admit essential skills personnel. The essentiality of the skills must be determined on a case-by-case basis, however, without resort to a bright-line test to establish eligibility. While essential skill employees should be able to obtain E status if they are filling positions requiring skills or technical knowledge of the companys product not readily available among U.S. workers, the U.S. enterprise may be expected to train U.S. workers eventually to fill the technical positions; the stay of such technical staff, therefore, will not be indefinitely renewed. Similarly, with regard to start-up personnel, it is expected that once start-up has been completed, U.S. workers will be training to fill these positions. See 4:11 of the Handbook . Salaries/Allowances/Benefits. List the salary in the allotted space. Be certain to specify the pay period, e.g., per month or per year. Also include the value of other compensation such as bonuses, allowances paid for overseas assignments, housing allowances, car rentals, apartment furnishings, and typical company health benefits. Again, remember to specify the frequency of such allowances, e.g., per week, per month, etc. Finally, add to these two figures and enter the sum in the space marked Total. This information is relevant in evaluating whether the position is executive or supervisory in nature. In specialist cases, the salary the specialized expertise can command will be compared with the salary listed in this item. If there is a sizable gap, greater scrutiny should be anticipated as to whether the position in fact requires such specialized skills.
Information required worker being replaced. If the visa applicant will be replacing a worker currently employed by the U.S. enterprise include the following information: (1) the name of the worker in the United States who is being replaced; (2) the type of visa issued to that worker, e.g., L-1, H-1B, E-1/E-2; (3) the date such visa was issued; and (4) the place it was issued. Remember that the enterprise cannot continue to staff its operations completely or predominantly with nationals of the treaty country. While those positions requiring a specialized, technical knowledge of the companys product not readily available among U.S. workers can be filled with aliens in treaty-trader status, the company may be expected to train U.S. workers eventually to fill the technical positions. Visas for technical staff will not be indefinitely renewed. Similarly, visas for replacement technical workers who are nationals of the treaty country may be denied particularly if the employee that is being replaced was in the United States to help start-up the enterprise or train U.S. technicians. In these cases, strong documentation should be submitted concerning the projected number of U.S. workers which will be hired in the future to staff the operations. Information on staffing. If the applicant is not replacing a worker already employed by the U.S. entity, state whether the applicants employment will result in an increase in the staff of the U.S. enterprise or whether the applicant is merely continuing his or her employment in the United States for the U.S. entity (e.g., the applicant is already in the United States as an E employee and he or she is seeking to renew a visa or the applicant is in the United States in another workauthorized status). Of course, if a new position is involved and the applicant is not currently working for the U.S. entity, then his or her employment should result in an increase in staff. On the other hand, if he or she is already employed by the treaty enterprise, then the approval of the visa application will not result in an increase in staff. Remember that the enterprise cannot continue to staff its operations completely or predominantly with nationals of the treaty country. While those positions requiring a specialized, technical knowledge of the companys product not readily available among U.S. workers can be filled with aliens in treaty-trader status, the company may be expected to train U.S. workers eventually to fill the technical positions. As a result, visas for technical staff will not be indefinitely renewed, particularly if the employee was in the United States to help start-up the enterprise or train U.S. technicians. In these cases, strong documentation should be submitted concerning the projected number of U.S. workers which will be hired in the future to staff the operations. Signature. The representative of the U.S. enterprise must sign Form DS-156E, certifying that the information provided is all true and correct. The employers representative must also enter his or her title and date the application. Contact person. Include the name and address of a person who may be contacted about this applicant. Also include the persons telephone and fax number. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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4:19. Nonimmigrant visa application for E-1 or E-2 nonimmigrant (DS-160)
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The new Form DS-160, the electronic nonimmigrant visa application form, is now mandatory at all U.S. diplomatic posts (as of April 30, 2010). Form DS-160 is a fully automated application that is completed, signed and submitted on-line. The form is completed through a dedicated DOS Web site at https://ceac.state.gov/genniv/. Applicants using the DS-160 must also electronically upload a U.S. passport-sized identification photograph. If the user is unable to upload a digital photograph either because the applicant doesnt have one or because an attempt to upload one was unsuccessfulthe applicant must bring to the visa appointment a print photograph that meets State Department requirements. The completed DS-160 form is automatically transmitted to the consulate for adjudication. Applicants may have their immigration counsel assist them in completing the electronic form, but they must complete the electronic signature portion themselves. Once the application is submitted, applicants must print out a filing confirmation page and submit it with the application package (if prescreening is required) or bring it with them to their visa interview (if the company is already registered). For E visa applicants, the DS-160 application form combines the previously used DS-156 (the standard nonimmigrant visa application) and DS-157 (the supplemental nonimmigrant visa application). The form does not replace the DS-156E form. Most E visa applicants must continue to fill out a hard copy DS-156E until the electronic DS-160E form is available. Specifically, the applicant must complete the paper DS-156E form as well as the electronic DS-160 if he or she is a principal treaty trader (E-1) or an executive, manager, or essential employee (E-1 or E-2). The applicant should complete only the online DS-160 if he or she is a principal treaty investor (E-2). In the latter cases, the DS-160 form solicits the relevant information to determine eligibility for an E-2 principal investor visa. Note that the DS-160 requires applicants to provide many details which the DS-156 and DS-157 did not. The latest edition of Form DS-160 introduced in July 2011 includes some enhanced technical features intended make the application more secure and easier to fill out. These enhancements were introduced to address many of the technical problems that arose when the initial version of the form was put in place. Among other changes, the new Form DS-160 contains more options to save an incomplete form, which should make it easier for visa applicants to fill out the lengthy application. If the forms new features work as anticipated, applicants for nonimmigrant visas could find it easier to fill out and submit the new application and may see some relief from the slowdowns and technical problems that many experienced when using the previous version of the form. The latest version of the DS-160 also emphasizes, however, that applicants must electronically sign and submit the application themselves. Visa applications cannot be signed by an applicants attorney or representative, except in special circumstances such as the applicants disability. The strict signature policy could cause some delays for those using an
4:19. Nonimmigrant visa application for E-1 or E-2..., Immigr. Proc....
attorney or representative to help them complete the form. A completed DS-160 for an E-investor is illustrated as Sample Form 4-2, below. Details instructions on preparing and submitting Form DS-160 are provided in Ch. 10, below. (a). Sample Form 4-2: Form DS-160 Nonimmigrant Visa Application 0100090000035704000000001a03000000001a03000026060f002a06574d464301000000000001001fd300000000010000000 80600000000000008060000010000006c0000000000000000000000140000001400000000000000000000002802000029020 00020454d4600000100080600000f000000010000000000000000000000000000000005000000040000510100000e01000000 000000000000000000000068240500b01e0400460000002c00000020000000454d462b014001001c000000100000000210c0d b0100000060000000600000004600000000020000f4010000454d462b224004000c000000000000001e4009000c0000000000 0000244001000c000000000000003040020010000000040000000000803f214007000c0000000000000008400005580100004 c0100000210c0db01000000000000000000000000000000000000000100000089504e470d0a1a0a0000000d49484452000000 10000000100403000000eddde25200000030504c5445ffffffd6d6dac6c6caec5e60ec7a7cababae97979beef4f5b22425de4446ef 989aceced2bcbcc0ecedeffe3e41e6e6e9a20180540000000174524e530040e6d866000000097048597300000b1300000b13010 09a9c18000000964944415478da63d4aa9a9ac0c0c070846131c33b20e4c86158cc07041c1d314cdc9f1e3030fc6048635ac0c7f 0e901074326a373d87f860f0c0c9a4c67d2521fad0fcd6460026afdf979010303334704e75b11b5172011b695064ccd1f9818fefd 4db91cf34c8b99edcf7bb3c04f66192c0cccabc3631904d45918d837fce562f825c5cc6e7c4841e52007330b930b831bc3aa9fd30 1a47b2d39a3ac6bd40000000049454e44ae4260820000000840010824000000180000000210c0db0100000003000000000000 0000000000000000001b40004034000000280000000100000002000000000000bf000000bf000080410000804103000000000 0000015000000000015002100000008000000620000000c00000001000000150000000c00000004000000150000000c000000 04000000460000001400000008000000544e50500601000051000000c00000000000000000000000140000001400000000000 000000000000000000000000000100000001000000050000000300000008000000040000000000000008600ee001500000015 0000002800000010000000100000000100010000000000000000000000000000000000000000000000000000000000ffffff00 7fff740a7fff494c7fff740a7fff00007fff00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc7 0000ffff000051000000bc01000000000000000000001400000014000000000000000000000000000000000000001000000010 000000500000006c000000bc0000000001000000000000c600880015000000150000002800000010000000100000000100080 000000000000000000000000000000000110000000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de0 0aeabab00efedec00413efe002524b2009b979700c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c 0c07070c010810101008080c0c07070b0b0b0b0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c070 20108100e0304080f0f0f0f0e0d0d020d010f08080f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0 f1003021003030e0d0e0d0e010f0f0f0f081005020310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a 0a0a0a0a0a0d0e04090109090901010909010a0a0a020d0309010109090109010901010a0a0c0203050109010901090109010a 0a0a070c030501010909010109090101010a0b0c02030304050606060606060606060708460000001400000008000000544e5 050070100004c0000006400000000000000000000001400000014000000000000000000000015000000150000002900aa0000 000000000000000000803f00000000000000000000803f0000000000000000000000000000000000000000000000000000000 000000000220000000c000000ffffffff460000001c00000010000000454d462b024000000c000000000000000e000000140000 000000000010000000140000000400000003010800050000000b0200000000050000000c0215001500030000001e000400000 007010400040000000701040045000000410b8600ee0010001000000000001500150000000000280000001000000010000000 0100010000000000000000000000000000000000000000000000000000000000ffffff007fff740a7fff494c7fff740a7fff00007fff 00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc70000ffff0000c3000000410bc60088001 0001000000000001500150000000000280000001000000010000000010008000000000000000000000000000000000011000 0000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de00aeabab00efedec00413efe002524b2009b97970 0c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c0c07070c010810101008080c0c07070b0b0b0b 0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c07020108100e0304080f0f0f0f0e0d0d020d010f080 80f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0f1003021003030e0d0e0d0e010f0f0f0f0810050 20310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a0a0a0a0a0a0d0e04090109090901010909010a0 a0a020d0309010109090109010901010a0a0c0203050109010901090109010a0a0a070c030501010909010109090101010a0b 0c020303040506060606060606060607080c00000040092900aa000000000000001500150000000000040000002701ffff0300 00000000Image 1 within document in PDF format. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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4:20. Nonimmigrant visa application for family member Family members of the E visa holder are entitled to enter the United States with the visa holder. Included in this category is the spouse of the visa holder, as well as minor unmarried children under the age of 21. Once children attain the age of 21 or get married, they are no longer eligible to remain in the United States in treaty status. Each family member needs a separate visa application filed in conjunction with that of the principal E applicant. The family will need to file the online DS-160 (a filing for dependents may be created through the online system). The application for family members should be submitted with that of the principal with its own documentation including, the Confirmation Page (for the DS-160 filing), the applicants passport, passport-sized photographs, the application fee (if required), and the machine-readable fee of $390. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:21. Generally, Immigr. Proc. Handbook 4:21
Immigr. Proc. Handbook 4:21 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status C. Submission of the Visa Application and Government Processing References 4:21. Generally
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Submission of the nonimmigrant visa application to a U.S. consulate is discussed in Ch 10. The first step before submitting the papers for E treaty status is to check with the U.S. consulate where the application will be made to ascertain its procedures. Consultation with the consulate on its procedures for an E visa application can save time and effort. Detailed information is often included on the consular post Web site. Links to post websites are available at: http://www.usembassy.gov/. Information sheets issued by the U.S. embassies in London and Tokyo are reproduced in Appendix 4. In all cases, the nonimmigrant visa application, Form DS-160, must first be submitted online and a print-out of the confirmation page must be submitted with the application package to the consulate (if prescreening is utilized) or brought to the interview. Once the DS-160 is completed, the applicant must pay the MRV fee. Applicants are typically required to pay the MRV fee at a designated bank while any reciprocity fees may be paid on the date of the interview. Many posts (including the U.S. Embassies in London and Tokyo) prescreen the applicationreview it in advance of an actual interview with the individuals who are applying for the visas. If prescreening is utilized, the complete E visa application must be submitted by mail to the consular post for review once the DS-160 is submitted and fee is paid provided the company is not already registered (see below). Once the review is completed, the E-visas Unit will contact the investor to arrange an interview date. For applicants whose applications have already been prescreened many of these issues will already be resolved and the interview will focus more on the position to be filled and the applicants qualifications and admissibility. If prescreening is not utilized, the visa applicant will need to schedule a personal interview (usually by using a designated phone or online service to schedule). On the date of interview, the applicant will need to present all of the necessary documents including the appointment notice, DS-160 confirmation page, proof of payment of the MRV fee, his or her passport, photos, and the extensive supporting documents establishing eligibility for the E visa (which will vary depending on whether the applicant is applying for an E-1 or E-2 visa). For cases that are not prescreened, the interview may be lengthy as the consular officer will need to resolve the eligibility of the investment or trading enterprise for treaty classification. At the interview, all applicants will have their fingerprints scanned and they may be photographed. This process enables consular offices to deny visas to applicants on any watchlist. In addition, biometric information captured during the visa 2012 Thomson Reuters. No claim to original U.S. Government Works. 63
interview is later compared to biometric information gathered during the arrival-departure process at the U.S. port of entry. Foreign nationals who plan to apply for visas should contact the relevant consular post for the latest information on application procedures and processing times. The following sections discuss the procedures: (1) when prescreening is utilized; (2) when pre-screening is not utilized; (3) when a company is already a registered company with the consular post. Note the following additional points with regard to E visa applications: Applications only at home consulates. Applications for E visas filed by third country nationals are unlikely to be accepted for filing. The reason for this is that E visa applications present complex issues that often are best examined by the consulate located in the aliens home country. Special E visa units. Because of the complex issues presented by these cases, many posts have an E Visa Unit that specializes in adjudicating E visa applications. These units will have expertise on the E visa cases so they should be able to process these cases more quickly than other consular officers. Processing times, no expedites in E visa cases. Because of the complexity involved in E-1 and E-2 papers, E visa applications normally take the longest time to process of all nonimmigrant types (usually several months). In addition, while most visa applicants may request expedited processing if extraordinary circumstances are presented, expedites will not be accepted from E visa applicants under any circumstances until the company is first registered. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:22. Procedures when prescreening is utilized, Immigr. Proc. Handbook 4:22
Immigr. Proc. Handbook 4:22 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status C. Submission of the Visa Application and Government Processing References
4:22. Procedures when prescreening is utilized Most posts will pre-screen E visa applications if a company is not already registered. Although prescreening may add several weeks or months to the visa application process, it is often worthwhile in order to assure that an unhurried and careful review of the application can be made. If prescreening is required, the applicant must complete and submit the DS-160 online and pay the MRV fee in advance. The applicant must then mail the DS-160 Confirmation Page, the MRV payment receipt, a completed DS-Form DS-156E, his or her passport, photos, and the binder containing the supporting documents (discussed in the prior sections). The post will first review the application papers prior to an interview with the persons or employees actually coming to the United States, in order to resolve first the eligibility of the investment or trading enterprise. If there are unresolved issues, applicants may be requested to bring further documentation to the visa interview. Once the review is completed, the E-visas Unit will contact the investor to arrange an interview date. The applicant must bring to the interview his or her appointment notice and any additional documents requested by the consular post during the review process. If a determination has been made through the prescreening process to qualify the company or investment for treaty purposes, the main focus of the interview will be on the position to be filled and the visa applicants job qualifications and admissibility. The visa applicant will usually be interviewed by an officer from the special E Visa Unit at the post. The consular officer will go over the visa application forms with the employee and his or her family to verify that all information is correct and that the applicants are admissible to the United States. The alien and his or her family should not ignore the nonimmigrant intent issue, which must still be addressed by treaty traders and investors even though they can potentially remain in the United States for many years. The visa applicants should be careful to affirm their intention to remain in the United States temporarily, limited to the period of stay, including extensions, authorized by USCIS. This prescreening procedure applies to the first visa applicant involving the treaty company. As a result, the procedure typically applies to the E-1 owner or E-2 investor because that person is usually the first person applying for the E visa and is in the best position to discuss the eligibility of the trading or investment enterprise. The instructions for E applicant at the London Embassy, for example, state that the owners and investors of the treaty trader and treaty investor business must present a binder of supporting documents and wait until the binder has been reviewed by officers at the embassy. Once the review is completed, the E-visas Unit will contact the investor to arrange an interview date. Employees of registered companies, on the other hand, may make their appointments (through the special phone line available to all applicants). While employees do not need to submit any documents in advance, they will need to present a copy of the business registration letter given to the company by the embassy. It is possible, however, that an individual owner or investor will not apply for an E visa, e.g., the owners or investors are corporations. In these cases, the first visa applicant may be an employee of the company. For this reason, all visa applicants should be prepared to discuss their companies in detail during their interview. Legal representative and/or financial advisors are not permitted to attend the interview.
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NOTE: The prescreening procedure must also be followed when the company must be re-registered. Re-registration of the treaty company will be required to establish the companys continuing eligibility for E classification. E treaty company reregistration policies vary among consular posts. See 4:24, below. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:23. Procedure when prescreening is not used, Immigr. Proc. Handbook 4:23
4:23. Procedure when prescreening is not used Although prescreening of E visa applications is preferred at almost all consular posts, a few consulates do not utilize this process and the issues of treaty qualification for the company and visa issuance for the first visa applicant are handled as part of the interview process. Applicants at these posts must follow the procedures for filing the application as required for all other nonimmigrant types. The nonimmigrant visa application, Form DS-160, must be submitted online and the MRV fee paid in advance. The applicant may then schedule an interview utilizing the posts designated phone or online service to schedule the interview. On the date of the interview, the applicant must carry all of the necessary documents, including the appointment notice, DS-160 confirmation page, proof of payment of the MRV fee, a completed DS-156E, his or her passport, photos, and a binder containing all of the supporting documents establishing eligibility for the E visa classification as discussed in the prior sections. As when prescreening is utilized, the first visa applicant is typically the E-1 owner or E-2 investor who will be interviewed by an officer from the special E Visa Unit at the post. It is likely that the E visa applicant will have to wait substantially longer than other visa applicants to discuss his or her application with a consular officer, since review of the papers can taken a lengthy period of time. The applicant can expect to be questioned closely on the application, and should be prepared to refer the officer to the relevant documentation on each of the key elements of an E visa case. It is possible that the applicant will be told to come back again on a different day for an interview, particularly if the documentation is incomplete or more information is requested by the officer. As noted, most consulates do not allow the submission of a companys initial E visa application without prescreening. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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4:24. Procedures when a company is already registered Once the eligibility of the enterprise is established and the first E visa application involving the company has been approved, this company is registered by the consular post. Visa applications for company employees may then be expedited. No prescreening is required for these applications. Instead, applicants, who are typically employees of the company, must follow the procedures for filing the application as required for all other nonimmigrant types, submit the DS-160 online, pay the MRV fee, schedule an appointment according to post procedures, and bring the application package to the interview. In addition, while the standard elements of the visa application apply, extensive documentation of the eligibility of the trading or investment enterprise for treaty classification is not required. Instead, a copy of the business registration letter issued to the company by the consular post is sufficient. Of course, a company support letter is still required and it should summarize the companys eligibility. The main focus of the supporting documentation, however, should be on the position and the applicants qualifications. Many posts require completion only of Part III of the DS-156E (relating to the individual visa applicant) when the company is already registered. Of course, re-registration of the treaty company will be required periodically to establish the companys continuing eligibility for E classification. E treaty company re-registration policies vary among consular posts. Many posts require re-registration on an annual basis. To maintain your company registry, the U.S. Embassy in Tokyo requires Form DS-156E and Financial Statements/Tax Returns to be submitted annually. Other posts (including the London Embassy) require re-registration when an existing E visa holder is seeking renewal. When required, some posts will require an entire application to be prescreened as described in 4:22, above. As discussed, this prescreening process can stretch to several months, and often filed in connection with existing E nonimmigrants seeking renewal of their E visas, the re-registration process often place E personnel in jeopardy of becoming stranded for indefinite periods. The situation is made worse by the fact that many posts lack a formal procedure to advise companies when re-registration is due, and there seems to be no clear policy with respect to visa issuances prior to the filing or approval of re-registrations. Some posts, for example, renew E visas only for the balance of time left in an existing E-2 registration. In response, the State Department has indicated that consular officers have the discretion to require an applicant to submit an entire E visa application whenever an E visa is sought. Because consular officers have the authority to request further documentation reasonably related to any visa application, the agency has indicated that posts may require applicants to present further documents detailing the information in the DS-156E, including company information. The State Department recommends that companies maintain good contact with E visa units at the consular posts in order to be able to provide information whenever necessary and on a timely basis. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:25. Visa issuance, Immigr. Proc. Handbook 4:25
4:25. Visa issuance
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Guidelines governing visa issuance and denial are covered in detail in Ch 10. The maximum period of validity (i.e., the period during which the alien may make applications at the U.S. border for admission) and the number of entries for which the visa is valid are both established on the basis of reciprocity. Most E visas are issued for a period of validity of four or five years. A listing of the maximum periods of visa validity and the permissible number of entries is included for each treaty country in Appendix 2. Once the visa is affixed to the passport, the visa application process is complete. The whole process from the time of the first call to the consulate to the affixing of the visa may take as little as two to three weeks.
NOTE: Dependents of principal E-1 and E-2 nonimmigrants will be issued visas based on the reciprocity schedule of their country of nationality. If the nationality of dependents is the same as the principal, then they will be issued visas of the same duration and number of entries as the principals. If they have different nationalities, however, the dependents will be issued visas of different duration (if the dependents country has a treaty conferring E status and the reciprocity schedule lists different a period of duration). If the dependents country of nationality lacks an E treaty, however, the dependent will be issued a visa based on the reciprocity schedule of the principal aliens country. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:26 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category III. Procedures For Obtaining E Status D. Procedures at the Border References 4:26. Generally
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The E visa gives the alien who holds it the right to travel to the United States and make an application for admission into the country. It does not give him or her an automatic right to enter. Once the alien gets to the border, he or she can be questioned again by immigration inspectors about the nature of the entry, and they have the theoretical right to deny entry. Although they deny entry in some cases, the complexity of the E visa case makes it unlikely that the officer at the border will have the information or expertise to challenge the visa holder. Therefore, although the E visa holder can and will be questioned at the border, there is very little chance that this questioning will lead to his or her not being admitted into the country. Detailed information regarding the documents to be carried at the border and the admission procedures is included in Ch 11, below.
Reminder: While Canadian citizens are generally exempt from the nonimmigrant visa requirement, Canadians seeking E status must obtain an E visa. The E visa must be presented at the border. In addition, as of June 1, 2009, Canadian citizens are required to present a passport or other WHTI-compliant document (e.g., a NEXUS card) at the port of entry. In the past, Canadian citizens were exempt from the passport requirement when traveling within the Western Hemisphere. These rules have now changed under the Western Hemisphere Travel Initiative (WHTI), a DHS program that requires standard and consistent documents for all travelers entering the country. The final phase of the WHTI was implemented on June 1, 2009. As of that date, Canadian citizens are required to present a passport or other WHTI-compliant document (e.g., a NEXUS card) whether entering the U.S. air, land or sea ports of entry from within the Western Hemisphere. The WHTI program is discussed in detail in Ch 11, below. US-VISIT proceduresMost foreign nationals are subject will be processed under the U.S. Visitor and Immigration Status Indication Technology (US-VISIT) system at the border. The system, mandated by legislation enacted in 1996, will when fully implemented record the entry and exit of all foreign visitors to the U.S. and will maintain each visitors U.S. travel history. Under a recent expansion in December 2008, most foreign nationals, including U.S. lawful permanent residents and many Canadian travelers, are required to be fingerprinted and photographed through the US-VISIT system when arriving in the U.S. (only Canadian citizens seeking admission as B-1 or B-2 visitors are exempt). When applicable, the foreign national will be required to provide fingerprints and photographs. Using an inkless scanner, the CBP officer will scan the travelers fingerprints. The officer also takes a digital photograph of the visitor. The fingerprint and photographic data, along with information in the visitors travel documents are used to verify the visitors identity and will be scanned against law enforcement and national security lookout lists. Based on the verification results, the visitor will be admitted to the United States or asked to undergo further verification. If data in the verification process indicate possible national security or law enforcement concerns, the visitor will be referred for additional screening. As of December 31, 2005, DHS had implemented
the US-VISIT arrival procedures to all ports of entry in which permanent facilities are maintained. Based on the latest reports, the US-VSIT enrollment process generally takes about 1015 seconds. A detailed discussion of the integrated entryexit data system is included in Ch 11, below. Expedited entry for Canadian and Mexican E nonimmigrants. Several trusted traveler programs administered by CBP expedite the inspection process for certain travelers from Canada and Mexico. The NEXUS program allows pre-screened, low risk Canadian travelers to be processed with little or no delay at designated highway lanes (at high volume border crossing locations), at a NEXUS kiosk at designated airports, and at certain marine reporting locations. A dedicated commuter lane program known as SENTRI also exists along the U.S.-Mexican border. SENTRI is a fully automated dedicated commuter lane, using advanced Automatic Vehicle Identification technology. When an approved Mexican traveler approaches the border in the SENTRI lane, the system automatically identifies the vehicle and validates the identity of the occupants of the vehicle. NEXUS and SENTRI participants may also utilize Global Entry kiosks as part of their NEXUS and SENTRI membership. CBP currently administers the Global Entry pilot at several major U.S. airports and several preclearance airports in Canada. Global Entry allows expedited customs processing for preapproved members who have undergone background checks and provided biometrics. Mexican nationals who are not SENTRI members may separately apply for participation in the Global Entry program. The application procedures for NEXUS, SENTRI, and Global Entry programs are discussed in detail in Ch 11, below. Cancellation of visas at the border based on prior period of overstay. The IIRIRA permits an immigration officer to cancel a nonimmigrant visa when the alien was admitted on the basis of a nonimmigrant visa, remained in the United States beyond the period of stay authorized by USCIS, and seeks readmission using that same visa. The alien will only be allowed readmission based on a new visa issued by a consulate located in the aliens country of nationality or based on a new visa that has been annotated by a third country consulate to indicate that the Department of State has issued it under extraordinary circumstances. The legacy INS issued guidelines the circumstances which trigger automatic voiding of visas under IIRIRA, the procedures for canceling visas and adjudicating applications for waivers of the nonimmigrant visa requirement, and the circumstances in which government will permit withdrawal of the application for admission or institute expedited removal procedures. The latest guidelines are discussed in detail in Ch 11, below. Period of admission. Current rules provide for a two-year period of admission for E visa holders each time they apply for admission at a U.S. port of entry. Every time they travel abroad, E nonimmigrants will be given a two-year period of stay upon being readmitted to the United States. Many E nonimmigrants, therefore, may never need to apply for extensions of stay, because their business activities required them to travel at least once every two years, effectively extending their stay upon each readmission to the United States. Note that the period of admission has nothing to do with the period of validity of the visa issued at the consulate. As a result, no matter how long the E visa is valid, the maximum period of stay that will be given to the E visa holder at the U.S. border is two years. The period of admission will be stamped on an entry document given to the alien. This document is Form I-94, the arrivaldeparture record used to evidence that an alien has been officially admitted into the United States. This form is an important document which the alien must keep with him or her during the entire stay in this country. It is surrendered to the airline or to immigration officers at the time of each departure from the country, and a new I-94 form is given upon reentry, stamped with the new two-year period of admission. (A sample of Form I-94 appears in Appendix 3.) The E visa holder will be admitted for two years even though his or her visa is valid for a shorter period of time, e.g., because the visa is about to expire or because the alien is a national of a country for which E visas are granted for six months or less. Keep in mind that not all border inspectors always are aware that they can admit an E alien at the border for the two-year period when less than a two-year period of validity remains on the E visa in the aliens passport. When the alien or a family member will be traveling to the United States with less than a two-year period of validity left on an E visa, he or she may want to carry a letter from the employer or the aliens or employers attorney citing the basis for admitting the alien for a full period of two years. A sample letter is illustrated below as Sample Form 4-4. The letter should be presented only if a problem in the period of admission arises at the border. There have been persistent reports of E-visa holders being granted less than the full period of admission authorized under the rules because their visas have a shorter period of validity remaining. If the immigration inspector at the port of entry refuses to grant the E-visa holder a two-year period of admission, even after being shown the type of letter described above, the alien should request to speak to the immigration supervisor at the port of entry. 2012 Thomson Reuters. No claim to original U.S. Government Works. 71
Although the alien has a right to speak to the supervisor, the immigration inspector might refuse to relay the request to the supervisor. In that case, the alien should not continue to argue, but should be certain to obtain the immigration inspectors name. In case a shorter period of admission is granted than the two-year period to which the alien is entitled, the employer does not need to seek an extension of stay on Form I-129. Guidance from U.S. Customs and Border Protection states that jurisdiction for I-94 errors made at the port of entry rests solely with the Customs and Border Protection bureau. Where a foreign national receives a port-of-entry I-94 that contains an errorincluding an incorrect authorized period of staythe individual is to report in person to the nearest CBP deferred inspection office or port of entry, regardless of where the original I-94 was issued. Mail-in procedures are not available. At the deferred inspection station, a CBP officer will review the error and, if appropriate, will issue a corrected I-94; corrections will also be made to the Nonimmigrant Information System (NIIS). Seventy deferred inspection sites exist throughout the U.S. and the outlying territories. A list of the deferred inspection sites, with their contact information, is found at: http://http://www.cbp.gov/xp/cgov/toolbox/contacts/deferred_inspection/. Note that CBP has jurisdiction to correct only those errors made at the port of entry. Forms I-94 issued by USCIS may be corrected by a USCIS officer only, pursuant to the procedures described in Ch 23, below. (a). Sample Letter 4-4 (Company letter for alien seeking entry with visa of less than two-year validity) Immigration Inspector Department of Homeland Security New York, New York Re: Period of Admission for John JONES Dear Sir or Madam: Mr. Jones is an employee of our company and as such continues to qualify for E-2 status. We respectfully request that Mr. Jones be admitted to the United States for a period of two years in order to continue his temporary assignment with our company. Please note that although Mr. Jones holds an E-2 visa issued by the U.S. consulate in London that will expire in two months, he is eligible for admission to the United States for a full two-year period. This policy was expressed in a cable dated October 10, 1989 from the Assistant INS Commissioner for Inspections (file CO 235-C), which stated in part: Nonimmigrant visas issued to E-1 and E-2 treaty traders and investors are, for terms of admission purposes, utilized like B nonimmigrant visas. For example, if an E visa is issued on 6/15/89 valid to 9/14/89 that means that the holder of the visa may make an initial entry at any time between those dates. Upon presentation of the visa and valid passport, and if otherwise admissible, the holder should be admitted for the [full period of admission authorized under the USCIS rules] . Currently, the USCIS rules authorize admission for a two-year period. The October 10 cable states that the full period of admission may be granted to the holder even if the visa is valid for a shorter period of time as the visa must be valid only at the time of entry. Therefore, if you find Mr. Jones to be otherwise admissible, please admit him for the full two-year period mandated by this policy. Sincerely, Peter Panda President Panda Enterprises, Inc. [2011 supplemental material adding information on expedited entry for Canadians and Mexicans 4:26, page 459] CBP expands Global Entry pilot to Mexican nationals and NEXIS and SENTRI participants. In December 2010, CBP
announced that it has expanded its Global Entry pilot to include Mexican nationals who satisfy the requirements for participation. See 75 Fed. Reg. 82200 (12/29/10). In a separate notice, CBP announced that it will also permit participants in two other trusted traveler programs, NEXUS and SENTRI, to utilize Global Entry kiosks as part of their NEXUS and SENTRI membership. 75 Fed. Reg. 82202 (12/29/10). CBP current administers the Global Entry pilot at 17 major U.S. airports. Global Entry allows preapproved members who have undergone background checks and provided biometrics expedited customs processing, reducing average wait times while allowing law enforcement to focus on the most serious security threats at points of entry to the U.S. At Global Entry kiosks, participants insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosks touch-screen, and then present a transaction receipt to CBP officers before leaving the inspection area. More detailed information regarding the program is provided in Ch. 11 of the Handbook. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:27 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category IV. Change of Status to the E Category References 4:27. Generally
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 It sometimes happens that the alien is already in the United States at the time that he or she decides to seek status as a treaty alien. This circumstance arises because an alien is entitled to enter the U.S. in B-1 business visitor status in order to take initial steps to make an investment in this country. The alien may be in a position in which the investment activities move more quickly than expected and require his or her immediate and continued presence. At the point when he or she is ready to qualify as a treaty alien, therefore, he or she may still be in the U.S. and for all practical purposes unable to leave. In the situation described above, the alien has two ways to become an E treaty alien: He or she can return to his or her home country or a consulate in a third country and make an E visa application at the U.S. consulate there. Note that the U.S. consulates in Canada and Mexico often place restrictions on E visa applications from third country nationals (i.e., non-Canadians) when the alien is already in the United States in valid status. The policy of these consulates changes frequently, and must be checked before attempting to process an E visa application at one of them. He or she can file a change of status application in the United States with USCIS. This application, as noted above, is normally from B-1 business visitor status to the E treaty status. It is usually advisable to deal with the U.S. consulate in the aliens home country. However, particularly if the alien is in the midst of completing business arrangements, the choice may come down to applying for a change of status through USCIS. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:28. Change of status papers, Immigr. Proc. Handbook 4:28
Immigr. Proc. Handbook 4:28 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category IV. Change of Status to the E Category References 4:28. Change of status papers
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 A change of status application to the E category requires these papers: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Form I-129 and E supplement, Petition for Nonimmigrant Worker Company letter in support of change of status request Copy of Form I-94 for the E alien (the original I-94 should no longer be filed since USCIS will mark the extension approval and new period of stay on the approval notice, Form I-797, and not on the I-94 forms) Supporting documentation such as would be submitted to the consulate with the initial E visa application Filing fee of $320 (for I-129 form) by personal check or money order to the U.S. Department of Homeland Security Form I-539 for family members of the E alien Copy of Form I-94 for each family member (the original I-94 should no longer be filed since USCIS will mark the extension approval and new period of stay on the approval notice, Form I-797, and not on the I-94 forms) Filing fee of $290 (for I-539 form) Form I-907 with premium processing fee of $1,225 (if premium processing is sought) If the aliens lawful status has already expired, evidence establishing that the failure to file a timely application was due to extraordinary circumstances beyond the control of the petitioner and the delay was commensurate with the circumstances Form G-28, the attorney notice of appearance (if the E alien is represented by an attorney or representative)
11.
Form I-129 and Form I-539. Form I-129 and the E supplement is illustrated in 4:34, below. The annotation following illustration of the form also covers the change of status situation. An illustration of Form I-539 is included in this chapter in 4:34, below. The annotation following that form also covers the change of status situation. Note the following on completing Form I-129 and the E Supplement when used for a change to E status: Part 2, Item 1 (Requested Nonimmigrant Classification) include the appropriate nonimmigrant status requested, i.e., E 2012 Thomson Reuters. No claim to original U.S. Government Works. 75
1 or E-2 in Part 2 of the form, Boxes 2(a) and 4(b) must be checked for a change of status application in Part 3 of the form, complete the information required when the alien is already in the United States in Part 4 of the form, check yes for Item 5 if an I-539 form will be filed simultaneously with the I-129 form to change the status of family members of the E treaty alien Petition duplicates not required in E cases. In most other I-129 nonimmigrant cases, a duplicate petition (and supporting documents) is required. USCIS sends a petition copy to the State Departments Kentucky Consular Center for inclusion in the Petition Information Management Service (PIMS), the system used by consular officers to verify petition approval. A petition duplicate is not required in E cases because the foreign national does not require prior USCIS petition approval to obtain or renew an E visa at consular posts abroad. The support letter and supporting documentation. Apart from the information included on Form I-129, the main portion of the E change of status application consists of the support letter and supporting documentation from the enterprise. The essential elements of the support letter are discussed in detail in 4:16, above. The E change of status application on Form I129 and E Supplement must be filed with the supporting documentation regarding the trading or investment enterprise that would have been filed with the initial nonimmigrant visa application at the consulate (see 4:17, above). Since the change of status application is often the first application submitted by an E nonimmigrant to USCIS, it is important to document each point that will impact eligibility for E status. In addition, the form instructions suggest that two pay stubs should be included with the petition if the beneficiary is currently working in the United States, as evidence of maintenance of status. Pay stubs are not an absolute requirement, though adjudicators are accustomed to seeing them. Other evidence remains acceptable, such as a W-2 form or an employment letter. USCIS has also indicated that only single-sided copies of supporting documents should be used; double-sided copies should not be used. Filing fees. USCIS charges a standard filing fee, $325, for any I-129 filing, whether it is an initial petition, a change of status application, or an extension of stay application. Family members must file a separate application, Form I-539, to request a change of status or extension. The filing for this application is $290. The $290 fee applies regardless of the number of coapplicants listed on the form. Form I-907 and $1,225 fee in premium processing cases. Legislation enacted in 2000 creates a premium processing adjudication program. Under the program, business petitioners may choose to pay a $1,225 fee to obtain expedited processing of their cases. Such cases must be adjudicated within 15 days. E-1 and E-2 extension and change of status requests filed on Form I-129 are eligible for expedited processing. In addition, when an I-539 application for a family member is concurrently filed with the I-129 petition where premium processing is requested, USCIS will also process the application within the 15 calendar days without requiring an additional fee. Petitioners requesting premium processing must submit Form I-907 and the $1,225 fee required for such requests. The fee is separate from the standard filing fee for the I-129 petition described above. The premium processing fee must be paid by separate check or money order; do not include it in the same check as the usual filing fee for the I-129. Form I-907 is illustrated as Sample Form 5-2 ( 5:24 (a)), below. Note that there is a designated premium processing address at each center with a distinct Post Office box number, zip code, or other special designation. These addresses are listed in Ch 23, below. The program is discussed in detail in 5:24, below. Application for employment authorization by E spouses. Legislation enacted in 2002 provides work authorization for spouses of E-1 and E-2 nonimmigrants (treaty traders/investors). Service guidelines provide that spouses seeking employment authorization must apply for an employment authorization document (EAD) on I-765. Such applications may be submitted concurrently with the I-129/I-539 change of status package submitted by the E principal and family members. The documents required to be submitted in connection with the EAD application are discussed in detail in 4:6, above. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:29. Filing the application and government processing, Immigr. Proc. Handbook 4:29
Immigr. Proc. Handbook 4:29 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category IV. Change of Status to the E Category References
4:29. Filing the application and government processing
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 I-129 forms (and accompanying I-539s for dependents) for E treaty traders, investors, and their employees must be filed with the California Service Center, regardless of the location of employment. This procedure continues to apply even though many immigration forms must now be filed with a USCIS lockbox facility for initial processing. As of September 9, 2011, there are no plans to introduce lockbox processing for Form I-129, the nonimmigrant worker petition. The jurisdiction and addresses for each of the Service Centers are listed in Ch 23. That chapter also sets forth the general procedures that must be followed in filing petitions or applications with SCs as well as the general instructions on packaging petitions/applications. Note that cases requesting premium processing must be sent to the special address at the Service Center designated for such requests as listed in Ch 23, below. Keep in mind that when Form I-539 for a dependent spouse or child accompanies the principals Form I-129, the entire package is filed with the CSC. Similarly, if Form I-765, Application for Employment Authorization, is filed for an E spouse together with the I-129/I-539 package, the entire I-129/I-539/I-765 package is filed with the CSC. Concurrently filed applications for family members will not be separated. On the other hand, if dependents are filing for benefits separately from the principal nonimmigrant (i.e., an I-539 is filed alone), the I-539 form must be submitted to the Dallas Lockbox Facility, regardless of the applicants residence. The specific address for the facility set forth in Ch. 23, below. This filing procedure applies to I-539 filings by dependents when the application is not submitted concurrently with the principals I-129. The application will be initially processed by the lockbox facility and routed to the appropriate Service Center for final adjudication, i.e., the center where the principals I-129 is pending or the center that has approved the principals I-129. If the related I-129 is still pending, include a copy of the filing receipt (or transfer notice) for the principals Form I-129. If the I-129 has been already approved, the I-539 package for dependents should include a copy of the principals approval notice. (a). Responding to requests for evidence During the adjudication process, USCIS sometimes will request that additional evidence be submitted. Such requests are made on Form I-797C and are commonly known as requests for evidence or RFEs. Under the latest policy guidelines on RFE timeframes issued in July 2011, RFEs for most forms, including I-129 forms, will have a standard response time of 84 days. In addition, if an RFE is served by mail, the applicant will have an extra three days to respond. The revised instructions were 2012 Thomson Reuters. No claim to original U.S. Government Works. 77
issued to provide greater consistency in the issuance of RFEs. Note that adjudications officers retain some discretion to reduce response times in specific cases where warranted by the circumstances, but must get supervisor approval in order to do so. As a result, when responding to an RFE, attorneys should follow the actual response time frame set forth in the RFE. See Ch. 23, below. (b). Travel while change of status application is pending or after application is approved An alien on whose behalf an E change of status application has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the application. As a result, the application should be denied. This has been the agencys long-standing policy on the issue. The practical result of this policy is that such persons will need to apply for an E visa abroad before seeking readmission. In 2004, USCIS issued guidance clarifying its policy regarding the effect that a departure has on an approved change of status application. USCIS takes the position that if someone has an approved change of status application, and then travels and reenters prior to the time that the change takes place, the person may continue to assume the approved status on the effective date. The USCIS letter (issued in August 2004) re-confirms the policy regarding the effect of travel on an approved change of status that was set out in earlier correspondence issued in 1995. The 1995 letter applied the so-called last action rule which stated that if someone has an approved change of status from F to H, and then travels and re-enters prior to the time that the change of status is effective, the persons status will automatically change from F to H on the effective date (so long as the reentry in F-1 status was bona fide). The August 2004 opinion confirms this, and specifically refers to the last action rule. Note that it still remains USCIS policy, however, that a foreign national on whose behalf a change of status application has been filed and who travels outside of the United States before the application is adjudicated is considered to have abandoned the request for a change of status. (c). Approval or denial of the application In the case of a change of status approval, Form I-797A is used to notify the petitioner of an approval. The form is endorsed with the notation C/S B-1 to E-2 and the date of the approval. The notice will also note the new period of authorized stay. The maximum initial period of stay that can be granted by USCIS is two years. The petitioner should tear off the lower portion of the form and give it to the beneficiary. The lower portion of Form I-797A contains a new Form I-94 that should be stapled to the original I-94 issued to the alien upon his or her admission. The lower portion of the form also has another part that contains information on the approval; this part of the approval notice may be used to renew the aliens visa. Processing of Form I-129 change of status applications can take several weeks. Family members who filed separate I-539 applications will also be issued approval notices with endorsements and replacement I-94 forms. If an application for change of nonimmigrant status is denied, no right to administrative appeal exists. The only options are for the investor to file a motion to reopen or reconsider the denial, or go into federal court to challenge the USCIS action as an abuse of discretion. This is an expensive and unappealing alternative that would, of course, require legal assistance. The lack of an appeal right should be considered in weighing whether to apply for a change of nonimmigrant status in the U.S., or for an E visa directly at a U.S. consulate abroad, particularly in view of what has been previously said about the relative capabilities of USCIS and the State Department in evaluating E cases. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:30. Visa renewal after change of status application granted, Immigr. Proc. Handbook...
4:30. Visa renewal after change of status application granted
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 USCIS approval of the change of status application gives the alien the right to remain in the United States subject to the conditions of the new nonimmigrant status. However, if the alien leaves the U.S., he or she will need to obtain a new visa from a U.S. consulate abroad. See Ch 10 for the papers and procedures necessary to obtain a nonimmigrant visa. Visa renewal through the Visa Office in Washington, D.C. is unavailable to persons who have changed their status while in the United States. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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4:31. Persons ineligible for change of status
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Persons who are out-of-status at the time of filing the change of status application must apply for an E nonimmigrant visa abroad (unless they are able to demonstrate extraordinary circumstances justifying approval of a late change of status application as indicated above). Furthermore, if the applicant overstayed his or her period of authorized admission, the applicant will be required to submit his or her visa application at the consulate located in the country of the aliens nationality. A third country consulate will not process the application unless the alien can establish extraordinary circumstances. Under prior law, persons who were ineligible for a change of status because they had overstayed their period of lawful admission could obtain a nonimmigrant visa abroad at a visa issuing post in Canada or Mexico without needing to travel to their home country. Under the overstay provision of IIRIRA, nonimmigrant visa processing at a third country consulate is no longer possible in these situations unless extraordinary circumstances are shown. The overstay provision is discussed in detail in Ch 10. It should also be noted that persons who are in unlawful status for significant periods of time (181 days or more) may be subject to new grounds for inadmissibility upon their departure from the United States. Persons subject to the new inadmissibility grounds are ineligible for nonimmigrant or immigrant visa issuance for three or 10 years, depending on the length of the period of unlawful presence. Agency guidance on the new inadmissibility grounds, which were added by IIRIRA is discussed in detail in Ch 12. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Immigr. Proc. Handbook 4:32 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category V. Extensions and Other Post-Admission Issues A. Extensions of Stay References
4:32. Generally
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 As already noted, the treaty alien is privileged in some respects over other nonimmigrants, particularly in that he or she can extend his or her stay almost indefinitely in this country. Many treaty aliens have been here for 10 years or more, and this continuation in treaty status is not inconsistent with being a nonimmigrant, even though it appears that such persons are resident here. As long as the treaty alien maintains the stated intention to leave the United States at the end of his or her lawful stay, his or her presence here for prolonged periods is permissible. However, as the treaty alien is only admitted to the United States for a period of two years, how does he or she extend his or her stay beyond this two-year period? There are two ways: Every time the treaty alien travels out of the United States, he or she is admitted for a new two-year period on readmission. For the treaty alien who travels abroad at least once every two years, then, the extension comes automatically upon readmission. The only restriction on his or her ability to continue to follow this course of action is the period of validity of his or her visa. Note, however, that family members who remain in the United States while the principal nonimmigrant travels will not have their status automatically extended by virtue of the principals readmission for a new period of two years. Careful attention must therefore be paid to the dates on which family members authorized periods of stay expire, and applications to extend their status may need to be submitted to USCIS even if the principal nonimmigrant does not require an extension. Most E visas are issued for a period of validity of four or five years. This means that, although no formal extension of stay needs to be applied for in the United States if the alien travels abroad at least once every two years, a new visa eventually must be obtained. The new visa application must be made in the same manner as the original application: with a cover letter and supporting documentation to show that the investment or trade activity is continuing and still meets all of the requirements of the treaty provisions. Note also that the treaty enterprise may be required to update the information submitted on Form DS-156E when it first qualified employees for E status (through a so-called re-registration process). The requirements and procedures for obtaining renewal visa are identical in most respects to those procedures governing initial E visa application as discussed in 4:15 to 4:26, above
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Extensions through USCIS. When a treaty alien does not travel out of the United States prior to the expiration of the twoyear period of admission, he or she must apply for an extension of stay in the United States through USCIS. Extensions of stay may be granted to E aliens in two-year increments, with no outer limit on the total period of stay. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:33. Papers for extension of stay, Immigr. Proc. Handbook 4:33
Immigr. Proc. Handbook 4:33 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category V. Extensions and Other Post-Admission Issues A. Extensions of Stay References 4:33. Papers for extension of stay
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship The following papers must be submitted for an E extension of stay: 1. 2. 191
Form I-129 and E supplement, the petition form for nonimmigrant work categories Company letter in support of the extension request (note that if the aliens period of stay has already expired, the letter must also cite to the extraordinary circumstances that led to the delay and that justifies approval of the late filing) Supporting documentation such as would be submitted to the consulate with the initial E visa application Copy of Form I-94 for the E alien (the original I-94 does not need to be filed because the extension approval and new period of stay will be marked on the approval notice, Form I-797, which has a tear-off portion serving as a replacement I-94) Filing fee of $325 payable by check of money order to the Department of Homeland Security Form I-539 including all family members of the E alien Copy of Form I-94 for each family member (as with the principal E alien, the original I-94s for family members do not need to be submitted) Filing fee of $290 Form I-907 with premium processing fee of $1,225 (if premium processing is sought). Form G-28, the attorney notice of appearance (if the E alien is represented by an attorney or representative)
3. 4.
5. 6. 7. 8. 9. 10.
Application for employment authorization by E spouses. Legislation enacted in 2002 provides work authorization for spouses of E-1 and E-2 nonimmigrants (treaty traders/investors). USCIS guidelines provide that spouses seeking employment authorization must apply for an employment authorization document (EAD) on I-765. Such applications may be submitted concurrently with the I-129/I-539 extension package submitted by the E principal and family members. The documents required to be submitted in connection with the EAD application are discussed in detail in 4:6, above.
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4:34. Preparation of the extension application, Immigr. Proc. Handbook 4:34
Immigr. Proc. Handbook 4:34 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category V. Extensions and Other Post-Admission Issues A. Extensions of Stay References 4:34. Preparation of the extension application
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 The instructions to the I-129 form state that the I-129 form should be filed in duplicate. Therefore, a duplicate copy of the Form I-129 and E Supplement (and all supporting documents) should be submitted. I-129 form should contain an original signature. Sample Form 4-4 illustrates a completed Form I-129 and E Supplement for an E-2 extension request. A line-byline analysis of the form follows the illustration. The analysis includes all uses of Form I-129 for an E case: extension of stay, change of status, or changes in employment. Significant revisions to I-129 form implemented. USCIS has issued a revised edition of Form I-129. The latest version of Form I-129 is dated 01/19/11. A prior edition of the form, dated 11/23/10, remains acceptable until further notice. No earlier versions of the form are acceptable. USCIS has made significant alterations to the I-129 form. The form contains several important new questions for petitioning employers. Among the changes in the revised form that will impact E cases are the following: (1) Itineraries. If the treaty alien will work at several different work locations, the instructions to the form state that an itinerary listing each work location should be attached to the petition. The itinerary should include both additional work locations of the U.S. enterprise and any off-site work locations to which the treaty alien will be assigned. By regulation, only H, O, and P petitions require itineraries where there is more than one work location. Although there is no similar regulatory requirement for E cases, it is advisable to include an itinerary because the itinerary question has been added to the general Form I-129 applicable to all classifications filed using the form. (2) Off-Site Placements. The revised Form I-129 includes language that asks petitioners to indicate whether the beneficiary will work off-site. Although USCIS has not clearly defined what constitutes off-site employment, it is reasonable to take the position that off-site means actual productive work at a site other than an office of the petitionerin most cases, at a client site. (3) Acknowledgment of USCIS Petition Verification. The revised form requires petitioners signing Form I-129 to acknowledge that USCIS has authority to verify the information in the petition by any means the agency determines appropriate. This can include on-site visits to the worksite by the agencys Fraud Detection and National Security Directorate, a practice that has become increasingly frequent in recent years. It can also include the agencys review of publicly available open source information about the petitioner; though the agency has not specified what types of information it will consult, social and business networking sites, business directories and similar data are possible 2012 Thomson Reuters. No claim to original U.S. Government Works. 85
sources. For example, USCIS has indicated that it has begun testing the Validation Instrument for Business Enterprises (VIBE), a program that will use Dun & Bradstreet (D&B) databases and other sources to verify employer business information provided in certain types of employment-based petitions, including I-129 petitions. The analysis of the form provided below should be carefully reviewed when completing the I-129 form for the E treaty alien. USCIS signature policy in employment-based cases. In a January 2010 memorandum USCIS provided new guidance concerning the use of powers of attorney and what is an acceptable signature on applications and petitions. The signature policy memorandum would require filings made on behalf of a corporation or other legal entity to be signed only by an authorized officer or employee of the organization. Employers would no longer be able to authorize their outside immigration attorneys to sign applications and petitions on their behalf pursuant to a power of attorneya reversal of previous agency practice. Cases utilizing powers of attorney for business immigration filings were to be rejected. The memorandum was abruptly withdrawn shortly after it was released, and the agency indicated that it would seek input from stakeholders before implementing the new policy. In the February 2010 meeting with stakeholder, USCIS officials indicated that it expects to issue a new memorandum that prohibits immigration filings that are signed by outside counsel under a power of attorney, except in very limited circumstances outside the scope of business immigration. However, USCIS will accept Form I-907 requests for premium processing service that are signed by outside attorneys and will also accept responses to requests for evidence (RFEs) signed by attorneys. As of September 9, 2011, new guidance on the agencys signature policy has not been issued. While agency officials at the stakeholders meeting suggested that reasonable notice of a revised policy would be forthcoming, employers that use powers of attorney may wish to discontinue this practice immediately out of an abundance of caution. While USCIS Headquarters has withdrawn the earlier memo, it is difficult to predict how individual service centers will treat filings that utilize powers of attorney in the future. (a). Sample Form 4-4: Form I-129 and E supplement for an E extension of stay 0100090000035704000000001a03000000001a03000026060f002a06574d464301000000000001001fd300000000010000000 80600000000000008060000010000006c0000000000000000000000140000001400000000000000000000002802000029020 00020454d4600000100080600000f000000010000000000000000000000000000000005000000040000510100000e01000000 000000000000000000000068240500b01e0400460000002c00000020000000454d462b014001001c000000100000000210c0d b0100000060000000600000004600000000020000f4010000454d462b224004000c000000000000001e4009000c0000000000 0000244001000c000000000000003040020010000000040000000000803f214007000c0000000000000008400005580100004 c0100000210c0db01000000000000000000000000000000000000000100000089504e470d0a1a0a0000000d49484452000000 10000000100403000000eddde25200000030504c5445ffffffd6d6dac6c6caec5e60ec7a7cababae97979beef4f5b22425de4446ef 989aceced2bcbcc0ecedeffe3e41e6e6e9a20180540000000174524e530040e6d866000000097048597300000b1300000b13010 09a9c18000000964944415478da63d4aa9a9ac0c0c070846131c33b20e4c86158cc07041c1d314cdc9f1e3030fc6048635ac0c7f 0e901074326a373d87f860f0c0c9a4c67d2521fad0fcd6460026afdf979010303334704e75b11b5172011b695064ccd1f9818fefd 4db91cf34c8b99edcf7bb3c04f66192c0cccabc3631904d45918d837fce562f825c5cc6e7c4841e52007330b930b831bc3aa9fd30 1a47b2d39a3ac6bd40000000049454e44ae4260820000000840010824000000180000000210c0db0100000003000000000000 0000000000000000001b40004034000000280000000100000002000000000000bf000000bf000080410000804103000000000 0000015000000000015002100000008000000620000000c00000001000000150000000c00000004000000150000000c000000 04000000460000001400000008000000544e50500601000051000000c00000000000000000000000140000001400000000000 000000000000000000000000000100000001000000050000000300000008000000040000000000000008600ee001500000015 0000002800000010000000100000000100010000000000000000000000000000000000000000000000000000000000ffffff00 7fff740a7fff494c7fff740a7fff00007fff00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc7 0000ffff000051000000bc01000000000000000000001400000014000000000000000000000000000000000000001000000010 000000500000006c000000bc0000000001000000000000c600880015000000150000002800000010000000100000000100080 000000000000000000000000000000000110000000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de0 0aeabab00efedec00413efe002524b2009b979700c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c 0c07070c010810101008080c0c07070b0b0b0b0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c070 20108100e0304080f0f0f0f0e0d0d020d010f08080f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0 f1003021003030e0d0e0d0e010f0f0f0f081005020310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a 0a0a0a0a0a0d0e04090109090901010909010a0a0a020d0309010109090109010901010a0a0c0203050109010901090109010a 0a0a070c030501010909010109090101010a0b0c02030304050606060606060606060708460000001400000008000000544e5 050070100004c0000006400000000000000000000001400000014000000000000000000000015000000150000002900aa0000 000000000000000000803f00000000000000000000803f0000000000000000000000000000000000000000000000000000000
000000000220000000c000000ffffffff460000001c00000010000000454d462b024000000c000000000000000e000000140000 000000000010000000140000000400000003010800050000000b0200000000050000000c0215001500030000001e000400000 007010400040000000701040045000000410b8600ee0010001000000000001500150000000000280000001000000010000000 0100010000000000000000000000000000000000000000000000000000000000ffffff007fff740a7fff494c7fff740a7fff00007fff 00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc70000ffff0000c3000000410bc60088001 0001000000000001500150000000000280000001000000010000000010008000000000000000000000000000000000011000 0000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de00aeabab00efedec00413efe002524b2009b97970 0c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c0c07070c010810101008080c0c07070b0b0b0b 0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c07020108100e0304080f0f0f0f0e0d0d020d010f080 80f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0f1003021003030e0d0e0d0e010f0f0f0f0810050 20310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a0a0a0a0a0a0d0e04090109090901010909010a0 a0a020d0309010109090109010901010a0a0c0203050109010901090109010a0a0a070c030501010909010109090101010a0b 0c020303040506060606060606060607080c00000040092900aa000000000000001500150000000000040000002701ffff0300 00000000Image 1 within document in PDF format. Analysis of Sample Form 4-4
Part 1. Information about the employer filing this petition Family Name/Given Name/Middle Name/Telephone Number. Part 1 of Form I-129 solicits information about the employer filing the petition. Item 1 in Part 1 should be completed only when the employer is an individual; all other employers should type N/A in these spaces and provide the Company or Organization name in Item 2. Note that it is the treaty enterprise (the trading company or the investment enterprise located in the United States) that must file the E petition, and, therefore, it is unlikely that an individual will be filing the petition. Note also that the companys representative who is supervising the case should not include his or her name on this line, but may include his or her name on the Care of line below. Special note on treaty enterprises . With regard to E-1 traders, it is possible that the trading company in the United States is a sole proprietorship, so that an individual name could be listed as the employer. On the other hand, the enterprise should be a separate business entity from an E-2 investor. Because actual funds must be committed to the U.S. investment enterprise, these funds cannot remain in possession and control of the treaty investors as his or her personal property. Sole proprietorships, therefore, are unlikely to qualify as acceptable business entities for E-2 purposes, and an individual should not be listed as the employer for E-2 purposes. Company or Organization Name. This item should be completed only when the employer is not an individual; individuals who are employers should complete the line above. In most E situations, U.S. enterprises filing the petition are not sole proprietorships, and therefore, the name of the U.S. business entity must be typed in these spaces. Special note re ownership of treaty enterprise . The U.S.-based treaty enterprise or business entity must have the same nationality as a treaty country. The nationality of a company engaging in trade or investment is the nationality of those persons who own at least 50% of the stock of the corporation. For large, publicly held companies that may have a difficult time establishing their nationality through stock ownership records, the firm can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. The nationality of the persons owning the corporate stock is their country of citizenship. Foreign nationals who are also U.S. permanent residents cannot be counted toward determining at least 50% ownership. Treaty countries are listed in 4:8 of this chapter. Guidelines regarding the treaty companys ownership are discussed in detail in 4:9 of the Handbook . 2012 Thomson Reuters. No claim to original U.S. Government Works. 87
In Care Of. This item provides space to denote a person at the company to whose attention the approval notice can be sent. The employer should designate a name here in order to assure prompt receipt of the approval notice, unless the employer is represented by counsel who submits Form G-28, Notice of Appearance; in that case, the approval notice and any other correspondence will be sent to the counsel. Where counsel submits Form G-28, the employer will receive courtesy notification of approval. Address. The employer must list its address. Note that the enterprise filing the petition must be a legal business entity in the United States and, therefore, a U.S. address must be listed. It is clear that the treaty enterprise must already be in existence in the United States and either operating or close to operating. With regard to treaty traders, for example, it must be shown that the trading company filing the petition is engaging in substantial trade principally between the United States and the treaty country. See 4:11 of the Handbook . With regard to treaty investors, the qualifying investment must be active; that is, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. An investment need not be fully operational in order for the investor or qualifying employees to receive an E-2 visa but the active investment hurdle must be overcome. See 4:12 of the Handbook . Telephone Number/E-Mail Address. The telephone number and e-mail address listed here should be for the person listed in the In Care Of box in Part 1, Item 3a. When listing phone number, include the area code but do not insert spaces or special characters. Federal Employer Identification Number. All enterprises filing Form I-129 for treaty traders or investors should have an employer identification number from the IRS for tax withholding purposes since this number must be obtained to operate in the United States. Individual Tax Number/Social Security Number.A social security number or individual tax number should be provided only when the employer is an individual; all other employers should type N/A in these spaces. Note that it is the treaty enterprise (the trading company or the investment enterprise located in the United States) that must file the E petition, and, therefore, it is unlikely that an individual will be filing the petition. Part 2. Information about this Petition Requested Nonimmigrant Classification. If Form I-129 is being filed on behalf of a treaty trader, enter E-1 in this space. If the form is being filed on behalf of a treaty investor, enter E-2 in this space. Note the following requirements applicable to all E nonimmigrants: (1) a treaty of commerce and navigation or a bilateral investment treaty must exist between the United States and the country of nationality of the enterprise filing Form I-129; and (2) the principal investor or trader (the primary treaty alien) and employees of the treaty enterprise (the employee treaty aliens) must have the same nationality as the treaty enterprise. General requirements applicable to both nonimmigrant categories are covered in 4:8 to 4:10 of the Handbook . With regard to E-1 traders, it must also be shown that: (1) the treaty enterprise is engaging in substantial trade principally between the United States and the treaty country; and (2) the employee or principal is serving in a specified capacity (either managerial or involving essential skills). Special requirements applicable to E-1 treaty traders are discussed in detail in 4:11 of the Handbook . With regard to E-2 investors, it must be shown that (1) the investor has made an irrevocable commitment of funds that represents an actual, active investment; (2) the investment is substantial; (3) the investment is not marginal in nature; and (4) the person for whom treaty-investor status is sought will be filling a key role with the company. Special requirements applicable to E-2 treaty investors are discussed in detail in 4:12 of the Handbook
. Basis for Classification. How this part of the form is completed tells USCIS the type of case to be adjudicated. The employer must carefully complete this part in order to obtain the appropriate adjudication from USCIS. The employer must check one (and only one) of these boxes. New Employment. Box a. should be checked if the alien is not currently employed by this treaty enterprise in the United States in E-1 or E2 status and the petition does not involve a request to change or add E-1 or E-2 employers. The treaty trader or investor might fit within one of the following groups: (1) a new hire who is currently employed by a different employer in the United States in a different nonimmigrant category (e.g., currently working for another L-1 employer in the United States); or (2) currently employed by this employer in the United States but in a different nonimmigrant category (e.g., entered in B-1 status to establish investment enterprise). Where the alien is outside the United States, he or she should apply for an E visa at a U.S. consulate abroad. Prior approval of a USCIS petition is not required to be issued an E visa. Note also that a treaty trader or investor who fits within one of the two new employment categories described above only needs to submit Form I-129 if he or she is presently in the United States and is seeking a change of nonimmigrant status (if he or she is currently in a different nonimmigrant category). In that case, box b. of Item 4, below, would be checked to indicate the requested action (i.e., a change of status). A treaty trader or investor who is outside of the United States cannot obtain approval of an I-129 petition in order to be admitted to the United States in E status; such aliens must apply for an E visa abroad. Therefore, box a. of Item 4, below, would never be checked as the requested action for E treaty aliens who have checked new employment in this item. Even those treaty aliens who are already in the United States can avoid an I-129 petition simply by leaving the United States and obtaining an E visa abroad with the employer. Continuation of Previously Approved Employment Without Change. Box b. should be checked when the current treaty enterprise is seeking an extension of stay for the treaty alien, and there is no change in the aliens previously approved employment. In that case, box c. of Item 4, below, must be checked to indicate that an extension of stay is the requested action. Note that an E treaty alien who is outside of the United States when his or her previous period of stay expires is granted a new period of admission when he or she returns to the United States (with a new E visa or currently valid E visa) that effectively extends the aliens stay for an additional two years without filing Form I-129. Documentation regarding their continuing employment for the same employer should be presented at the port of entry. Change in Previously Approved Employment. Box c. should be checked to report non-substantive changes in the previously approved employment. In these cases, the beneficiary is not seeking to change employers or nonimmigrant classification but simply to report a minor change in his or her training with the same employer. Prior USCIS approval is not required if there is no substantive, or fundamental change in the terms or conditions of the aliens employment which would affect the aliens eligibility for E classification. For example, simply a change in the work site does not require prior USCIS approval. In addition, prior approval is not required if corporate changes occur that do not affect the previously approved employment relationship. Other minor changes that do not require prior USCIS approval include a change in the job title without significant change in job duties, minor changes of job duties that do not affect the basic requirements of the job being performed, a promotion to the higher position within the same occupation, a change in salary, or a change in the employers name that do not result in changes to the underlying nature or terms of the employment. In contrast, when a substantial change in the previously approved employment will occur, prior USCIS approval is required in the form of an amended petition and box f. should be checked instead. See below. 2012 Thomson Reuters. No claim to original U.S. Government Works. 89
Changes in employment which are not considered material and which do not require that an amended petition be filed may be noted on the employers support letter when an extension of stay is filed. When a change in previously approved employment is being submitted with an extension of stay request, box c. of Item 4, below, should be checked. Note that treaty aliens who are abroad may simply present themselves at a port of entry with documentation of the change in previously approved employment, and be readmitted in E status based on that documentation. Alternatively, they may report the change in connection with an application for a new E visa. In that case, the change need not be reported on Form I-129 in connection with an extension of stay request. New Concurrent Employment. It is unlikely that Box d. of Item 2 would be checked for a treaty alien. Concurrent employment may be approved only when the alien will remain in the same nonimmigrant category, i.e., an E treaty alien may not have concurrent employment approved that would require H-1B status. While it is possible that a second U.S. enterprise may be able to qualify the alien in E status, such situations are not common. Change of Employer. Box e. should be checked if the alien is currently employed by a different treaty enterprise in the United States in E-1 or E-2 status and is seeking to change E employers. If the alien is currently employed by a different employer in the United States in another nonimmigrant category and is seeking to change status to work for a different employer in E-1 or E-2 status, the appropriate box to check is box a. (New employment) and not this box. The treaty trader or investor who is seeking to change his or her E employer may request an extension of stay. In that case, box c. in Part 4 should be checked. If the treaty trader or investor is not seeking an extension of stay in connection with the petition filed by the new E employer, box d. should be checked indicating that the alien is seeking permission to amend his or her current E status. Keep in mind that the treaty trader or investor should not commence employment with the new E employer until the petition is approved or until a new E visa is obtained abroad with the new employer. Treaty aliens who are seeking to change employers can avoid an I-129 petition simply by leaving the United States and obtaining an E visa abroad with the new employer. Amended Petition. Box f. should be checked when there will be a substantive change in the terms or conditions of E status and prior USCIS approval must be obtained in the form of an amended petition. An amended petition is required, for example, when there has been a substantial change in the treaty aliens job duties or the treaty alien will work for another branch office of the U.S. enterprise. An amended petition is also required when there has been a fundamental change in the employing entitys basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed. In support of the amended petition, the treaty alien must submit evidence of continued eligibility for E classification in the new capacity. When an amended petition is being submitted without an extension of stay request, box d. of Item 4, below, should be checked, indicating as the requested action that USCIS amend the stay. Of course, if the amended petition is submitted as part of an extension of stay request, then box c. of Item 4 applies. With regard to situations in which the changes in the terms or conditions of E status will be substantive, employment under the new terms or conditions cannot commence until the amended petition is approved. In other words, Form I-129 should be filed to notify USCIS of important changes in previously approved employment before they occur and not merely at the time that an extension of stay is subsequently sought (minor, non-substantive changes in employment, in contrast, do not require USCIS approval and may be reported in connection with an extension of stay request). Failure to obtain USCIS approval for the material change may result in a determination that the alien was out of status and therefore he or she may be deemed ineligible for an extension of stay. Note that treaty aliens who are in the United States and are seeking permission to materially change the terms or conditions of E status can avoid filing an I-129 petition by leaving the United States and obtaining an E visa abroad reflecting the new terms and conditions.
Prior Petition. If the alien is currently in the United States in a nonimmigrant status, the beneficiary should give the petition or application receipt number if the aliens current nonimmigrant status was obtained or extended based on approval of a USCIS petition or application. Provide the receipt number for the most recent USCIS petition/application filed on behalf of the alien. For example, if the alien is currently in L-1 status and is seeking a change to E status, provide the petition receipt number for the most recent L-1 petition filed on the aliens behalf. Similarly, if the alien is currently in E status and he or she acquired this status based on approval of a prior I-129 change of status request or has previously sought an extension of E status on Form I-129 or an I-129 was filed on his or her behalf for any other reason (e.g., to report a change in E employment), the receipt number included on the most recent E petition should be included here. Of course, an E nonimmigrant may be in the United States without ever having a USCIS filed on his or her behalf since an E visa may be obtained at a consulate abroad without approval of a USCIS petition and his or her stay is extended each time the treaty trader or investor is admitted using a valid E visa. If the aliens current nonimmigrant status was not acquired based on approval of a USCIS petition or application, N/A should be entered in this space. Requested Action. One (and only one) of the items must be checked, even though some uses of Form I-129 for the E category do not fit neatly into any of the requested actions listed in the item. The options are discussed in part in relation to Item 2 of Part 2, above. Note the following: Notify the consulate or port of entry . For treaty aliens, box a. of Item 4 would never be checked. Treaty aliens who are abroad do not require prior USCIS approval to obtain an E visa. Even those treaty aliens who are already in the United States can avoid an I129 petition simply by leaving the United States and obtaining an E visa abroad with the employer. Change status and extend stay. Box b. of Item 4 should be checked only when new employment was checked in Item 2, above, and the treaty alien is currently in the United States in another valid nonimmigrant status. If the treaty alien is currently in the United States working for one employer in E status and is seeking employment with a different E employer (change of employer situation), this situation is not a change of status; in that case, box c., for an extension of stay, would normally be checked. Extend the stay . Box c. of Item 4 would not be checked when new employment is the basis for classification chosen in Item 2, above. Box c. would be checked in every instance when the basis for classification in Item 2, above, is continuation of previously approved employment without change, except when the treaty alien is outside of the United States at the time that his or her current period of stay expires. Under these circumstances, treaty aliens do not file Form I129 at all; they may simply present documentation of continued E-1 or E-2 employment at the port of entry together with a currently valid E visa and be readmitted to the United States in E status for an additional two-year period. Box c. might also be checked in the case of change in previously approved employment or new concurrent employment, if an extension of the authorized period of stay is sought in conjunction with either basis for filing the I-129 petition. This box would also be checked in conjunction with a change of employer filing when the treaty alien is currently employed in the United States for a different employer in E status, is changing employment to work for the employer filing the I-129 petition, and is simultaneously requesting an extension of stay in conjunction with the change of employer filing. Finally, this box would be checked with regard to an amended petition if an extension of stay if also being requested. Amend the stay. 2012 Thomson Reuters. No claim to original U.S. Government Works. 91
If the I-129 petition is being filed simply to notify USCIS of a change in previously approved employment for a treaty alien, without a simultaneous request for an extension of stay, then this box should be checked. Likewise, if the I-129 petition is being filed for new concurrent employment, without a simultaneous request for an extension of stay, then box d. should also be checked. If the treaty trader or investor is seeking to change E employers but is not seeking an extension of stay in connection with the petition filed by the new E employer, this box should be checked. Finally, if an amended petition is being filed without a simultaneous request for an extension of stay, this box should be checked. Extend the stay based on Free Trade Agreement. For E-1 and E-2 treaty aliens, box e. of Item 4 would never be checked. This selection would be checked only if the petitioner is filing a request to extend the stay of a Free Trade Agreement worker (i.e., H-1B1 for Chilean and Singaporean professionals, E-3 for Australian professionals, or TN for Canadian and Mexican professionals). Change of status based on Free Trade Agreement. For E-1 and E-2 treaty aliens, box f. of Item 4 would never be checked. This selection should be checked only if the petitioner is filing a request to change the foreign nationals status to a Free Trade Agreement classification (i.e., H1B1 for Chilean and Singaporean professionals, E-3 for Australian professionals, or TN for Canadian and Mexican professionals). Total number of workers in petition. For the E category, only one treaty alien can be included in an I-129 petition; therefore, the only proper response is one. Part 3. Information about the person(s) you are filing for If an entertainment group, give their group name. Entertainment groups are not eligible for E status. Enter N/A in this space. This part of the form requests basic biographical information about the treaty alien. Because only one E treaty alien can be included in each petition, the continuation sheet referred to in this part is not required. Name. The aliens name should match his or her passport (if he or she is outside of the United States) or his or her Form I-94 (if he or she is already in the United States). Form I-94 is the aliens arrival record which he or she was given at the time of admission to the United States. A copy of Form I-94 must be submitted with an extension request or a change of status request on Form I-129. Other Names Include maiden name and married names from all previous marriages. Date of Birth/Gender. This information should be found in the aliens passport. Include the date of birth in the format requested (i.e., mm/dd/yyyy). Social Security #. E treaty aliens who are already working in the United States in E status (or a different nonimmigrant category) will almost always have social security numbers. E treaty aliens might also have previously received work permission from USCIS for other reasons or during previous periods of stay in the United States (e.g., the alien was previously here in H-1B status). In addition, even aliens who have never had work authorization might have received a nonwork social security number for purposes of opening a bank account, enrolling in school, etc. If the applicant does not have a social security number, enter none in this space. A#. This number is the alien registration number, most commonly assigned to aliens who become U.S. permanent residents. An alien might have an A# if he or she was previously a permanent resident, has previously been placed in exclusion or deportation proceedings, or has otherwise been involved with the DHS in some type of investigation or
proceeding in which an A# was assigned. If the applicant does not have an A#, enter none in this space. Country and Province of Birth. This information should be found in the aliens passport. In the past, USCIS used this information to fill in the Country of Citizenship on the approval notice despite the fact that the country of birth and country of citizenship may be different. To solve this problem, the agency had indicated that it was acceptable simply to list the country of citizenship in the country of birth block. The revised I-129 form now has a separate block for country of citizenship and, therefore, it is no longer necessary to include the country of citizenship in this item. Country of Citizenship Indicate the treaty aliens country of citizenship in this item (that is, the country from which the alien has a passport). The rule is that the principal investor or trader (the primary treaty alien) and employees of the treaty enterprise (the employee treaty aliens) must have the same nationality of the treaty enterprise. The country of nationality (that is, the country from which the alien has a passport), may be different from the country of birth. In these cases, the petitioner can indicate the country of nationality in the box on the form. Example: India (nationality: United Kingdom). Date of Last Arrival. The aliens date of last arrival in the United States will be listed on the most recent Form I-94 issued to the alien. It will appear in the stamp placed on the I-94 by the immigration inspector at the port of entry. If the alien is not presently in the United States, enter N/A in this space. I-94 #. This number appears on the I-94 form in the upper left corner. If the alien is not presently in the United States, enter N/A in this space. Current nonimmigrant status. The letter designation of the aliens current nonimmigrant status will be handwritten on the I-94 form, in the appropriate space in the stamp placed on the card by the immigration inspector at the port of entry. If the alien has previously changed nonimmigrant status after initial admission to the United States, that change of status will be reflected on a replacement I-94 form given to the alien at the time that the prior change was approved. Place the letter designation for the current nonimmigrant category here, e.g., B-1, H-1B, etc. If the alien is not presently in the United States, enter N/A in this space. Expiration of status. The expiration date of the aliens current nonimmigrant status will be handwritten on the I-94 form, in the appropriate space in the stamp placed on the form by the immigration inspector at the port of entry. If the alien has previously changed or extended his or her status since initial admission, the new expiration date will be reflected on a replacement I-94 form given to the alien at the time that the prior extension or change of status was approved. If the alien is no longer in valid nonimmigrant status because his or her period of authorized stay has already expired, the general rule is that he or she is not eligible to apply for an extension of stay or a change of nonimmigrant status. Failure to file before the expiration date may be excused, at USCIS discretion, if the applicant demonstrates that: (1) the delay was due to extraordinary circumstances beyond the applicants control; (2) the length of the delay was reasonable; (3) the applicant has not otherwise violated his or her status; (4) the applicant is still a bona fide nonimmigrant; and (5) the applicant is not in removal proceedings. Requests for discretionary approvals must be specifically requested and accompanied by supporting evidence. If the alien has remained beyond the period of authorized stay and he or she lacks a justification for the untimely extension or change of status application, he or she must apply for an H-1B visa abroad. In these cases, the preparer should request that notice of the petition approval be sent to the appropriate post abroad. Keep in mind that an alien who overstayed his or her period of authorized admission must submit his or her visa application at the consulate located in the country of the aliens nationality. Furthermore, an alien who overstayed his or her period of authorized admission must submit his or her visa application at the consulate located in the country of the aliens nationality. A third country consulate will not process the application unless the alien can establish 2012 Thomson Reuters. No claim to original U.S. Government Works. 93
extraordinary circumstances. Under prior law, persons who were ineligible for an extension because they had overstayed their period of lawful admission could obtain a nonimmigrant visa abroad at a visa issuing post in Canada or Mexico without needing to travel to their home country. Under the overstay provision of the IIRIRA, nonimmigrant visa processing at a third country consulate is no longer possible in these situations unless extraordinary circumstances are shown. The overstay provision is discussed in detail in Ch. 10. It should also be noted that a period of unlawful presence of more than 180 days may render the alien ineligible for nonimmigrant or immigrant visa issuance for three or 10 years, depending on the length of the period of unlawful presence (see Ch. 19). SEVIS number. If the alien is currently in F, J, or M status, indicate the SEVIS number assigned to the student or exchange visitor. In a March 2011 stakeholder meeting, USCIS indicated that an answer to this question is required only if the petition is a change of status being filed on behalf of a beneficiary who is in F, M or J status. EAD number. If the alien has applied for an employment authorization document using Form I-765 and an EAD was issued to him or her, indicate the identification number listed on the card. Aliens may be in possession of an EAD card because they are currently in a nonimmigrant status for which employment authorization is not incident to status but they have obtained USCIS authorization by applying for an EAD, e.g., F-1 students. In a March 2011 stakeholder meeting, USCIS indicated that an answer to this question is required only if the petition is a change of status being filed on behalf of a beneficiary who is in F, M or J status. Passport information. Indicate the aliens current passport number, date passport was issued, and the date the passport expires. Address. List the aliens current U.S. address in this item. Keep in mind that the alien will not be notified of the I-129 approval or denial. All approval notices will go directly to the employer or the employers representative (when a G-28 form is filed). Part 4. Processing Information Item 1. The employer is supposed to indicate in this item the U.S. consulate or inspection facility to which it wants the petition approval sent. For E treaty aliens who are abroad, these boxes are inapplicable because an I-129 filing is only required in situations in which the treaty alien is in the United States. Notification to a consulate is not required because prior USCIS approval of a petition on Form I-129 is never required to obtain an E visa at a consulate abroad. Therefore, consulate should never be checked for E treaty traders. The other two boxes are also not appropriate for the treaty aliens, because prior USCIS approval of a petition is not required for Canadian treaty aliens seeking to be admitted in the United States. In short, when a treaty alien is presently located in the United States and is seeking a change of status or extension of stay on Form I-129, the notification of the I-129 approval does not need to be forwarded anywhere. When the treaty alien leaves the United States, he or she may obtain an E visa abroad at a U.S. consulate or seek readmission based on a currently valid E visa, and admission is based on that documentation. Because none of the boxes in item a. are appropriate for treaty aliens, leave the boxes blank, and in the space provided for Office Address (City), enter Not applicable-E Treaty Alien. Foreign address. Note that the E treaty alien need not maintain a foreign residence, and therefore it is not important if he or she does not have a foreign address. The address can be listed in care of a company office or a relative or friend. If no such address is available, the alien may list none in the appropriate space. Although E-category aliens need not maintain a foreign residence during their U.S. stays, they must affirm their intention to leave the United States when their period of stay expires. Item 2. All treaty aliens (including Canadian treaty aliens) must have a valid passport. Therefore, yes should be checked. If an application for a valid passport is pending when an extension of stay or change of status request must be filed because of the expiration of the current period of authorized U.S. stay, check no, and include an explanation in Part 9 of the I-129 form, including information about when and where the application for a new or renewed passport was made.
Special note on nationality of treaty aliens . The treaty alien must have the same nationality as the treaty enterprise which in turn must have the nationality of a treaty country. The nationality of an individual is his or her country of citizenship and, therefore, the aliens passport must have been issued by the treaty country. The guidelines concerning the nationality of a treaty alien are discussed in detail in 4:10. Item 3. Because only one alien may be included in each treaty alien I-129 filing, it is possible that the employer may be filing other E applications for change of status or extension of stay requests on separate I-129 forms. If other petitions are being filed simultaneously, answer yes in this item, and indicate the number. Note that this item refers to other I129 filings and not to accompanying applications for the principal aliens family members, which are filed on Form I539. Item 4. If the alien is already in the United States but has lost his or her I-94 form (or otherwise cannot produce it), he or she needs to apply for a replacement I-94. The application is made on Form I-102, which should be filed with the petition. Form I-102 requires a separate filing fee of $330. Note that a replacement I-94 must be sought even though USCIS no longer requires that an original I-94 form be submitted with Form I-129, and the approval of any extensions of stay or changes of nonimmigrant status will be marked directly on the approval notice, Form I-797, rather than on the I-94 form. A copy of the I-94 must be submitted with the petition, and if there is no copy to submit because the alien has lost the I-94, then the replacement must be sought. Because only one treaty alien can be included in each I-129 filing, the answer to how many replacement applications are being submitted can be no more than one. Item 5. When the treaty aliens status is being extended or changed in the United States, and family members are here with the alien, their status must also be extended or changed by simultaneously filing Form I-539 for the family members. All family members should be included on the same Form I-539, which should be filed with Form I-129 at the same USCIS service center. The fee for Form I-539 is $290, regardless of the number of co-applicants. If this item is answered yes, the number of applications will usually be one, that is, there is one I-539 application filed including all family members. Item 6. The initiation of removal proceedings (the procedure replacing exclusion and deportation proceedings under IIRIRA) must be reported. It is unlikely that USCIS would approve an extension of stay or change of nonimmigrant status with a removal proceeding pending, until it had received the result of the proceeding. If a treaty alien is in proceedings commenced at a port of entry, however, it might be appropriate to withdraw the application for admission and restart the process of obtaining E status, e.g., traveling to a U.S. consulate abroad to obtain an E visa or seeking admission based on a currently valid E visa. If the proceeding is based on a continuing ground for denial of admission, however, such as a drug conviction, it will be necessary to resolve the inadmissibility issue before proceeding with an E case. Even if the alien is ordered removed, it might be possible to obtain a waiver of the inadmissibility ground in conjunction with a subsequent E visa application. Item 7. A yes answer to this question should have no impact on the approvability of an I-129 petition for an E nonimmigrant. If the answer to this item is yes, the employer should provide an explanation (in Part 9) of the circumstances of the immigrant petition, i.e., the type of petition, the date of filing, USCIS office where it was filed, and whether it is still pending.
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The nonimmigrant status of an E treaty employee terminates when the principal treaty trader or investor obtains permanent residence because an employee is not entitled to E status if the principal alien is in the United States in a nonimmigrant status other than E status or as a permanent resident. Item 8. Item 8. is applicable only if box a. was checked in Part 2, Item 2, above. If that box was not checked, leave the four boxes in Item 8. blank. If new employment was checked in Part 2, Item 2, then indicate in item 8. whether the alien was granted or denied E status at any time in the last seven years. If the answer is no to both questions, check those boxes. If the answer is yes to either question, include an explanation in Part 9 of the form, including the dates between which the alien held E classification, or the date of a denial, the office which issued the denial, the file number, if available, and the reason for the denial. This item is principally relevant to other nonimmigrant categories for which the I-129 form is used; therefore, a yes answer to either question in this item should not have a bearing on the approvability of the petition. Item 9. Indicate in item 9. whether the petitioner has previously filed a petition for the alien. Since Item 7 already asks for prior immigrant visa petitions filed by the petitioner on behalf of the alien, it is assumed that the question solicits information on prior nonimmigrant petitions filed by this employer on behalf of the alien. For example, if the treaty alien was previously working for this employer in L-1 status and is seeking a change to E status to work for the same employer, the yes box should be checked because an I-129 petition was previously filed by the employer on behalf of the alien. If the answer is yes, include an explanation in Part 9 of the form, including the date the petition was filed and approved, the form number of the petition, the dates for which the petition was approved. If the petition was denied include the date of a denial, the office which issued the denial, the file number, if available, and the reason for the denial. This item is principally relevant to other nonimmigrant categories for which the I-129 form is used; therefore, a yes answer to either question in this item should not have a bearing on the approvability of the petition. Item 10. This item is inapplicable to the E category, because entertainment groups are eligible for immigration only in the P category. Leave these boxes blank. Item 11. The petitioner must indicate whether the beneficiary has ever been in J exchange visitor status. If so, the yes box must be checked in Item 11a and the petitioner must provide information regarding the dates the beneficiary was in the United States in J-1 or J-2 status in Item 11b. The form also requests documentation of this status (e.g., a copy of the DS-2019 certificate of eligibility issued by the J sponsor or a copy of the passport reflecting J visa stamp). In a March 2011 stakeholder meeting, USCIS clarified the petition need only include documentation of J status if the foreign national is currently in that status and the petition is a change of status from J. If the petition is a change of status from another nonimmigrant category, evidence of prior J status is not necessary. Aliens admitted in the J status who are subject to the two-year foreign residence requirement of 212(e) of the INA, are not permitted to change their status unless they have received a waiver of that requirement or have fulfilled it. Also barred from a change of nonimmigrant status are persons who obtained J-1 status to receive graduate medical education or training. This bar does not apply, however, if the alien is granted a waiver of the two-year foreign residence requirement under 214(l) of the INA. Part 5. Basic information about the proposed employment and employer The information in this part will be supplemented by the U.S. enterprises letter in support of the change of status or extension of stay, and by the required supporting documentation described in the instructions to Form I-129. Also, much of the important information indicating qualification for E status is included on the E Supplement to Form I-129, which must be submitted with the basic form. Therefore, the information written here can be kept brief. Job Title. There are no limitations as in the H-1B category or TN category that the treaty alien work in specific occupations. On the other hand, there are some guidelines on appropriate duties for E-1 treaty-trader aliens and E-2 treaty-investor aliens. Employees who are permitted to use the E-1 and E-2 categories include: (1) employees performing duties of an executive or supervisory character; and (2) employees who possess special qualifications that make their services essential to the efficient operation of the treaty enterprise (essential skill employees). Particularly with regard to executive and supervisory personnel, the title of the position will be one factor considered by USCIS in determining whether the treaty alien is filling an executive or supervisory position in the United States. The job title may also be a significant factor with regard to E-2 principal investors who must show that they will develop and direct the
investment in the United States. LCA or ETA Case Number. This item is inapplicable to the E category. Enter N/A in this space. This item is only relevant with regard to nonimmigrant categories that require the filing of a labor condition application (LCA) with the DOL (H-1B, H-1B1, and E-3 categories) or temporary labor certification (e.g., H-2B category). Address where the person will work. If the address is the same as the one listed in Part 1, the employer should write same as indicated in Part 1 in this space. The treaty alien might be employed at work sites away from the U.S. enterprises address listed in Part 1 in the following circumstances: (1) the address listed in Part 1 is the enterprises principal place of business and the treaty alien will work at a different office of the enterprise located in the United States; or (2) the treaty alien will work at several different offices of the U.S. enterprise, perhaps including the address listed in Part 1. In any of these cases, list the actual work site address in this space. If the treaty alien will work at more than one work site, attach an itinerary listing the address of each work location. Itinerary. If the treaty alien will work at several different work locations, an itinerary listing each work location should be attached to this petition. The itinerary should include both additional work locations of the U.S. enterprise and any off-site work locations to which the treaty alien will be assigned. Although USCIS has not clearly defined what constitutes off-site employment, it is reasonable to take the position that off-site means actual productive work at a site other than an office of the petitionerin most cases, at a client site. If an itinerary is attached, check the Yes box. If the treaty alien will work only at one location (i.e., a work location already listed in the petition listed in Part 1 or Part 5), an itinerary is not required and the preparer should check the No box. By regulation, only H, O, and P petitions require itineraries where there is more than one work location. Although there is no similar regulatory requirement for E cases, it is advisable to include an itinerary because the itinerary question has been added to the general Form I-129 applicable to all classifications filed using the form. Off-Site Employment. If the treaty alien will engage in actual productive work at a site other than an office of the petitioner, check the Yes box. If the treaty alien will only work at an office(s) of the petitioner, check the No box. Although USCIS has not defined what is off-site employment, it is reasonable to take the position (based on the instructions to the form) that off-site means actual productive work at a site other than an office of the petitioner, e.g., at a client site. Off-site employment does not include employment at different locations of the petitioner. In addition, it does not include off-premises events that do not involve productive employment such as casual and occasional meetings with a customer or attendance at an educational convention. Home offices may also be considered off-site locations. In these cases, include an explanation in Part 9 of the form. Work in CNMI. This question is only relevant for beneficiaries who will be employed solely in the Commonwealth of the Northern Mariana Islands (CNMI). In all other situations, the No box should be checked. Full-time or part-time position. While there is no specific prohibition on part-time employment by E treaty aliens, most treaty aliens in E status work full-time in the United States. An E position might be part-time if the alien will hold concurrent employment with another E employer or when the treaty alien will only be present in the United States intermittently. Neither situation is common in the E category. If the position is not full-time, check the no box, and enter the number of hours per week in the allotted space, or enter intermittent if the E worker will only be in the United States sporadically during the requested period of stay. If the position is full-time, check the yes box. Wages per week or per year. For the treaty alien, list the salary in the allotted space. Be certain to specify whether the listed salary is per week or per year. With regard to executive and supervisory personnel, the wages must be commensurate with executive or supervisory employment. Similarly, the wages an employee can command is one factor examined by USCIS in determining whether 2012 Thomson Reuters. No claim to original U.S. Government Works. 97
he or she possesses essential skills. Other compensation. This category often includes such compensation as bonuses, allowances paid for overseas assignments, housing allowances, car rentals, apartment furnishings, and typical company health benefits. The amount of such compensation is not greatly significant for USCIS purposes. List the type of compensation in the allotted space, and enter an estimate of its value, denoting per week and per year. Dates of intended employment. The dates of intended employment may extend up to two years from the date employment commences for change of status requests because the maximum initial period of stay that can be granted by USCIS is two years. Similarly, with regard to extension requests, the dates of intended employment may extend up to two years since extensions of stay may be granted to E aliens in two-year increments. Note that there is no outer limit on the total period of stay in E status (as in the H-1B or L-1 status), and, therefore, E status may be extended indefinitely for two years at a time provided the alien maintains an intention to depart the United States upon expiration or termination of E status. There are some built-in limitations on the period of stay of certain E employees, however. For example, while essential skill employees should be able to obtain E status if they are filling positions requiring essential skills or technical knowledge of the companys product not readily available among U.S. workers, the U.S. enterprise may be expected to train U.S. workers eventually to fill the technical positions; the stay of such technical staff, therefore, will not be indefinitely renewed. Similarly, with regard to start-up personnel in the E-2 category, it is expected that once start-up has been completed, U.S. workers will be training to fill these positions; USCIS has a policy establishing one year as the rule of thumb for the necessity of start-up personnel. See 4:11 to 4:12 of this chapter. Type of business. A brief indication of the business activity is sufficient for this item. The company support letter will give additional background on the company. Special note on E-1 enterprises . With regard to the E-1 category, the U.S. enterprise must be engaged in trade. Trade can involve the exchange, purchase, or sale of goods or services. Services include economic activities with an output that does not encompass a tangible good. Among the businesses that could be included as enterprises trading in services are banking, insurance, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, and law firms. Businesses participating in a technology transfer are also engaged in trade for E-1 purposes, as long as title to the trade item passes from one entity to the other. In practice, application of this broad concept to business enterprises trading services could be difficult. The definition of trade is discussed in detail in 4:11 of this chapter. Year established, Current Number of Employees, Gross Annual Income, Net Annual Income. Enter the date of establishment of the business, and provide the latest figures for current number of employees, and gross and net annual income. Note that new companies are entitled to use the E category and, in fact, many of the U.S. enterprises seeking E status for treaty aliens are newly-established. Therefore, the year of establishment should not have an impact on adjudication of the I-129 petition. Also note that there is no requirement that the employer show a sufficient net income on its tax returns to cover the salary offered to the alien; such a requirement exists for employment-based permanent residence cases. Nevertheless, if the net income is insufficient to cover the aliens salary, the employer may want to document how that salary will be paid, e.g., through increased capitalization of the U.S. employer by a foreign parent company or by sufficient capital on hand to cover salaries during a start-up period. Special note with regard to number of employees . Information on the number of employees will likely be used by USCIS to determine the size of the enterprise, particularly whether it is marginal. The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the alien investor and the aliens family members. If an E-2 enterprise is in its start-up stage and the number of employees is very small consisting mainly of other treaty aliens, projections should be made concerning the number of U.S. workers which will be hired in the future to staff the operations. The capacity to employ U.S. workers must be realized within five years of the principal investors admission to the United States. Any business plans submitted with the change of status/extension request, therefore, must reflect that U.S. workers are currently employed by the enterprise or will be employed within five years. Presumably, extensions will not be granted beyond
the five-year period if jobs are not created for U.S. workers. The existence of other employees may also be important for extension or change of status requests filed on behalf of executive or supervisory personnel. Specifically, the fact that these employees are supervising other professional and supervisory personnel is a favorable factor to be considered by USCIS. Special issue: whether U.S. enterprise in operation . With regard to the E-1 category, at minimum, the trade must have already commenced prior to an application for treaty-trader status because of the requirement that the trading company demonstrates a continued course of trade. The information solicited in this part, therefore, will assure that the enterprise is already in existence and in operation. Note that the continued course of trade may have been conducted informally prior to the change of status application rather than through an established trading enterprise, as long as trading has been established and exists at the time of the application. Note also that existing trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. This policy effectively permits the conferral of E-1 benefits before the trading company is in operation. See 4:11 of this chapter. With regard to treaty investors in the E-2 category, treaty investors may change status in the United States when they are actively in the process of investing in the United States, and, therefore, the U.S. enterprise may not yet be generating income. A qualifying investment, however, must be active; that is, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. Many problems with the active investment question lie in situations in which the investor is actively in the process of investing but the investment has not yet become fully operational. An investment need not be fully operational and generating income in order for the investor or qualifying employees to receive an E-2 status, but the active investment hurdle must be overcome; the question comes down to one of proof, and of submitting the correct supporting documentation to show that an active investment is planned. See 4:12 of this chapter. Part 6. Certification of Deemed Export Compliance This part requires employers of H-1B, H-1B1, L-1, and O-1A workers to certify their compliance with the U.S. Department of Commerces deemed export rules, which govern the release of technology to foreign nationals. This certification is not required in other I-129 cases, such as in E treaty cases. As a result, this part should be left blank. While the certification is required only in selected cases, the deemed export rules apply to foreign nationals in all nonimmigrant categories. The deemed export rules govern the release of technologies to foreign nationals in the United States, including those who hold temporary immigration status. When a technology is controlled, based on the foreign nationals home country and the nature of the technology, the employer must obtain a U.S. government export license before the foreign national worker can be given access to that technology. In practice, relatively few foreign nationals are actually affected by the deemed export rules. Further information regarding the deemed export rules is provided in Ch. 5, below. Part 7. Signature The representative of the U.S. enterprise must sign Form I-129. The employers representative must also print his or her name, enter the date of signature and provide a daytime telephone number where he or she can be reached. The representatives signature certifies that the information provided is all true and correct. The representatives signature on the form also certifies that he or she is authorized to file Form I-129 on behalf of the employer. Finally, in signing the form, the employer is acknowledging that USCIS has authority to verify the information in the petition by any means the agency determines appropriate. This can include on-site visits to the worksite by the agencys Fraud Detection and National Security Directorate, a practice that has become increasingly frequent in recent years. It can also include the agencys review of publicly available open source information about the petitioner; though the agency has 2012 Thomson Reuters. No claim to original U.S. Government Works. 99
not specified what types of information it will consult, social and business networking sites, business directories and similar data are possible sources. Currently, employers may authorize their outside immigration attorneys to sign applications and petitions on their behalf pursuant to a power of attorney. USCIS has indicated, however, that it expects to issue guidance that would prohibit immigration filings that are signed by outside counsel under a power of attorney, except in very limited circumstances outside the scope of business immigration. While a revised policy has not been announced, employers that use powers of attorney may wish to discontinue this practice immediately out of an abundance of caution. Part 8. Signature of person preparing form if other than above If the petitioner was assisted by another person in completion of this form, the other person must sign the form here. The preparer must also print his or her name, date the form, provide a daytime phone number where he or she can be reached, and provide his or her firms name (if any) and business address. Under 1996 legislation it is a criminal offense to fail to disclose a role in preparing or assisting in preparing, for a fee, an immigration-related document that is falsely madethat is, with knowledge or a reckless disregard of the fact that the document contains a false statement or material misrepresentation or has no basis in law or fact. Considering the significant penalty involved (five years of imprisonment and/or a substantial fine), the most cautious course of action is for any person who assisted in preparation of the form to include his or her name here (if more than one person assisted, an attachment can be included with the signatures of the other persons). Even when an attorney submits a notice of appearance on Form G-28 with the form, it is appropriate for the attorney to sign the form here as well, particularly in view of the regulatory definition of preparation adopted by USCIS. That definition is so broad that even an attorneys paralegals or secretaries would probably come within it if they worked on the form. Since those persons are paid a salary by the attorney and do not normally receive a fee from the applicant for the forms preparation, however, it is unlikely that anyone other than the attorney who receives the fee needs to sign here. The E Supplement to Form I-129 Name of U.S. enterprise and name of treaty alien. The first line of the E Supplement requires the name of the U.S. enterprise filing the I-129 and the name of the treaty alien on whose behalf the filing is being made. Classification Sought. Only one box may be checked in this section. The classification sought should be the same as noted for Question 1 of Part 2 (Requested Nonimmigrant Classification). Treaty Country. A treaty of commerce and navigation or a bilateral investment treaty must exist between the United States and the country of nationality of the enterprise filing Form I-129. List the country which has such a treaty with the United States in this space. See 4:8 of this chapter for a listing of treaty countries. Section 1. Information about the Employer Outside the U.S. (if any) If the treaty alien was employed for a foreign employer related to the U.S. enterprise, information about the treaty aliens foreign employer must be provided including: (1) the name of the employer; (2) the employers foreign address; (3) the aliens position with the employer; (4) the principal product, merchandise or service of the employer; and (5) the total number of employees working for the foreign employer. Such situations are not uncommon since often a foreign entity establishes a U.S. branch or subsidiary which may in turn seek the services of managerial or technical support personnel working for the foreign entity to start up the U.S. enterprise or to oversee the U.S. operation in its initial stages. For this reason, the L-1 category is a viable alternative to the E visa category when an individual investor or trader does not qualify for treaty consideration, e.g., the treaty alien is not a citizen of the treaty country. The L-1 category is discussed in detail in Ch. 5, below. Special note on aliens position abroad
. The aliens position abroad should give some indication as to whether he or she qualifies for an executive or supervisory position or for an essential skills position. If the alien did not have executive or supervisory duties abroad, USCIS may conclude that the alien is not qualified to fill such a position in the United States. Similarly, if the alien did not fill a role which gave him or her essential skills concerning the companys product, service, or trade, USCIS may conclude that the alien is not filling an essential skills position. In the latter case, USCIS will examine the length of the employees experience and/or training with the treaty enterprise, and the relationship of the skill or knowledge to the enterprises specific processes or applications. Section 2. Additional Information about the U.S. Employer Relationship to Foreign Employer. State the relationship of the U.S. enterprise to the foreign entity, i.e., whether the U.S. enterprise is a parent, branch, subsidiary, affiliate, or a joint venture enterprise (i.e., 50% owned by foreign entity) of the foreign entity. In many situations, the U.S. enterprise is a subsidiary, branch or a joint venture of the foreign entity which had established the enterprise to conduct trade or as an investment in the United States. In all such cases, the nationality of the U.S. enterprise for E purposes will be the nationality of the foreign entity because the foreign entity owns at least 50% of the U.S. enterprise (the nationality of a company is the nationality of those persons or entities who own at least 50% of the stock of the corporation). Because the U.S. enterprise will have the same nationality as the foreign entity, this entity must in turn be at least 50% owned by persons who are nationals of a treaty country. If the foreign entity is a large, publicly-held company that may have a difficult time establishing its nationality through stock ownership records, the foreign entity can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. Date and Place of Incorporation and Establishment. If the U.S. enterprise has been incorporated in the United States, include the date and place of incorporation as listed in the Article of Incorporation. Note that the U.S. enterprise may be engaged in activity through a business form other than a corporation, particularly when the principal investor or trader is the sole owner of the business. Note, however, that the corporate form is the easiest to document for treaty purposes as discussed in 4:18 of this chapter. Nationality of Ownership. In these spaces, list the name of the owner or owners of the U.S. enterprise, the nationality of the owner(s), the immigration status of the owner(s) if such owner is an individual, and the percentage of ownership of the U.S. enterprise. The U.S.-based treaty enterprise or business entity must have the same nationality as a treaty country. The nationality of a company engaging in trade or investment is the nationality of those persons or business entities who own at least 50% of the stock of the corporation. The nationality of a business entity which has an ownership interest in the U.S. enterprise is in turn determined by the nationality of those persons who own at least 50% of the business entity. For large, publicly-held companies that may have a difficult time establishing their nationality through stock ownership records, the firm can be presumed to have the nationality of the country where its stock is initially listed and traded on a public stock exchange. The nationality of the persons owning the corporate stock is their country of citizenship. Foreign nationals who are also U.S. permanent residents cannot be counted toward determining at least 50% ownership. If the information solicited in this part shows that the U.S. enterprise is not owned at least 50% by entities or individuals (excluding permanent residents) that have the same nationality of a treaty country, the U.S. enterprise cannot seek E status for its principals or employees. Evidence required to establish appropriate ownership is discussed in detail in 4:9 of this chapter. Assets, Net Worth, and Annual Income. This information will be used by USCIS to determine whether the U.S. enterprise is operating or close to operating (in the case of investment enterprises). With regard to the E-1 category, at minimum, the trade must have already commenced prior to an application for treaty-trader status because of the requirement that the trading company demonstrate a continued course of trade. The information solicited in this part, therefore, will assure that the enterprise is already in existence and in operation. Note that the continued course of trade may have been conducted informally prior to the change of status application rather than through an established trading enterprise, as long as trading has been established and exists at the time of the application. Note also that existing trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of 2012 Thomson Reuters. No claim to original U.S. Government Works. 101
items of trade. This policy effectively permits the conferral of E-1 benefits before the trading company is in operation. The continued course of trade requirement is discussed in detail in 4:11 of this chapter. With regard to treaty investors in the E-2 category, on the other hand, treaty investors may change status in the United States when they are actively in the process of investing in the United States, and, therefore, the U.S. enterprise may not yet be generating income. A qualifying investment, however, must be active; that is, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. The investor, at a minimum, therefore, must show that the enterprise is close to commencement of operations, e.g., purchased assets, transferred assets, and cash committed to the use of the enterprise. What constitutes legitimate elements of a treaty investment is discussed in detail in 4:12 of this chapter. Staff in U.S. Information concerning the employees currently working for the U.S. enterprise must be included in this part. The number of employees who are currently in E or L-1 status must be listed in these spaces in boxes a. or b. depending on whether the E or L-1 employees are working in an executive or supervisory capacity or possess essential skills necessary for the operation of the U.S. enterprise. In boxes c. and d. list the total number of employees working in an executive or supervisory capacity and the total number of essential skill employees. Information on the number of employees will likely be used by USCIS to determine the size of the enterprise, particularly whether it is marginal. The marginality of an investment enterprise is measured by its capacity to employ U.S. workers other than the alien investor and the aliens family members. If an E-2 enterprise is in its start-up stage and the number of employees is very small consisting mainly of other treaty aliens, projections should be made concerning the number of U.S. workers which will be hired in the future to staff the operations. The capacity to employ U.S. workers must be realized within five years of the principal investors admission to the United States. Any business plans submitted with the change of status/extension request, therefore, must reflect that U.S. workers are currently employed by the enterprise or will be employed within five years. Presumably, extensions will not be granted beyond the five-year period if jobs are not created for U.S. workers. The existence of other employees may also be important for extension or change of status requests filed on behalf of executive or supervisory personnel. Specifically, the fact that these employees are supervising other professional and supervisory personnel is a favorable factor to be considered by USCIS. Number Of Employees To Be Supervised. If the treaty alien will work in a managerial, executive or supervisory capacity, include the number of employees the treaty alien will supervise in the United States or include a description of the major component or function for which the executive or supervisor has ultimate control or supervision. If the treaty alien will work in an essential skill position in the United States, a description of the special skills essential to the U.S. enterprise must be included. Special note on supervisory or executive personnel . Treaty aliens are eligible for E-1 or E-2 status if they will work in an executive or supervisory capacity. A company should not expect to bring in five or six supervisors to oversee just a handful of employees. Although there is no easy rule of thumb to apply in determining how many supervisors are sufficient to run an enterprise, some element of proportionality between the number of supervisors and the total number of employees must be maintained. Note also that a supervisory position does not generally involve the direct supervision of low-level employees and instead entails the supervision of professional or other supervisory personnel. In general, the closer to the top levels of management the position is, the more likely that the person is filling such a position. Other factors that must be considered include the degree to which: (1) the salary and job title are commensurate with executive or supervisory employment; (2) the alien exercises ultimate control and responsibility for the operation or a major component of the enterprise; (3) the alien has authority to set policies and goals for the operation; (4) the alien possesses executive and supervisory skills and experience; and (5) the alien will perform routine work usually performed by staff employees (such functions may only be of an incidental nature). Supervisory or executive duties must be the employees primary function, with other job duties being incidental to this primary function. See 4:11 of this chapter.
Special note regarding essential skills positions . For many years the legacy INS had been proposing the establishment of a labor market test under which the treaty enterprise would have an affirmative duty to show that qualified U.S. workers were unavailable in order to justify the admission of essential skills personnel. While evidence of recruitment, such as advertising campaigns, was not explicitly required under the proposal, employers might have found such recruitment to be the only viable evidence to meet their affirmative duty. The Service also proposed a requirement that employers document their efforts through in-house training programs to replace the alien workers in most cases. Finally, the Service proposed requiring essential skills personnel to have unique or one of a kind skills, or proprietary knowledge of the employers product or manufacturing technique. To some extent, these proposals were being applied by the service centers, leading most applicants to pursue E status through nonimmigrant visa applications at U.S. consulates. Conceding that it lacked the statutory authority to implement these changes, the Service later adopted the existing State Department criteria relating to essential skills personnel. Under the State Department standards, the availability of U.S. workers, transferability of skills, and the uniqueness of the skills are all relevant factors in determining whether to admit essential skills personnel. The essentiality of the skills must be determined on a case-by-case basis, however, without resort to a bright-line test to establish eligibility. This development should result in more consistent determinations between USCIS and the State Department on this issue. While essential skill employees should be able to obtain E status if they are filling positions requiring skills or technical knowledge of the companys product not readily available among U.S. workers, the U.S. enterprise may be expected to train U.S. workers eventually to fill the technical positions; the stay of such technical staff, therefore, will not be indefinitely renewed. Similarly, with regard to start-up personnel in the E-2 category, it is expected that once start-up has been completed, U.S. workers will be training to fill these positions; USCIS has a policy establishing one year as the rule of thumb for the necessity of start-up personnel. See 4:11 of this chapter. Section 3. Complete if filing for an E-1 Treaty Trader If the I-129 is being filed on behalf of an E-1 treaty trader, include the annual gross trade of the U.S. enterprise (for the preceding fiscal year), and the percentage of the gross trade which is between the United States and the country of which the treaty trader is a national. The U.S. enterprise must be engaged in substantial trade principally between the United States and the treaty country. Whether trade is substantial is measured by: (1) the volume of trade; (2) the number of transactions; and (3) the continued course of trade. The flow of trade must be existing, continuous, and numerous. A single transaction, no matter how large in dollar value or protracted in time, does not constitute substantial trade. Although the monetary value of the trade item is a favorable factor, it is more important to have numerous transactions. Because the flow must be existing and continuous, the existence of commitments for future trade is also important. Note that the continued course of trade may have been conducted informally prior to the change of status application rather than through an established trading enterprise, as long as trading has been established and exists at the time of the application. Note also that existing trade includes successfully negotiated contracts, binding upon the parties, which call for the immediate exchange of items of trade. This policy effectively permits the conferral of E-1 benefits before the trading company is in operation. The trade must not only be substantial, but it must also be principally between the United States and the treaty country, i.e., more than 50% of the total volume of international trade of the U.S. office must consist of trade between the United States and the treaty country. Note that some difficulties may arise in determining which transactions of the treaty enterprise can be credited as U.S.-treaty country trade. This problem particularly arises with service enterprises. The requirement that the treaty enterprise engage in substantial trade principally between the United States and the treaty country is discussed in detail in 4:11 of this chapter. E-2 treaty investors do not complete this section. Section 4. Complete if filing for an E-2 Treaty Investor If the I-129 is being filed on behalf of an E-2 treaty investor, include the dollar amount of investment being made in the U.S. enterprise. Such investment may be in the form of cash committed to the U.S. enterprise (the funds must be placed into an escrow or a corporate account for the investment in order to be attributable to the investment). A personal bank statement of the investor does not evidence funds at risk and cannot be counted toward the initial amount of the 2012 Thomson Reuters. 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investment. The investment may also be in the form of equipment or inventory purchased by the U.S. enterprise or transferred to the U.S. enterprise (i.e., purchased assets and transferred assets). A qualifying investment may also include buildings and land purchased by the U.S. enterprise. Other forms of investment may include loans secured by the investors own assets or unsecured loans granted on the basis of the investors signature. This information will be used to determine whether the investment is active and substantial. To be considered active, the business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity. For example, uncommitted funds in a bank account do not represent an active investment, unless enough other evidence of business activities exist to show that the funds are used in the routine operation of the business (payment of bills, purchase of inventories or equipment). Many common problems with the active investment question lie in situations in which the investor is actively in the process of investing but the investment has not yet become fully operational. An investment need not be fully operational in order for the investor or qualifying employees to receive E-2 status. The active investment hurdle must be overcome, however. This question comes down to one of proof and of submitting the correct supporting documents to show that an active investment is planned. See 4:17 of this chapter. This information will also be used to determine whether the investment is substantial. No absolute test can be applied in determining whether or not an investment is substantial. The legacy INS and the State Department recently reconfirmed that there is no minimum dollar amount necessary in order for the investment to be considered substantial. In order for an investment to be considered substantial, it must meet one of two tests: (1) it must be proportional to the total value of the particular enterprise in question (a test usually applied to investment in existing businesses); or (2) it must be an amount normally considered necessary to establish a viable enterprise of the type contemplated (a test normally applied to new businesses). The substantial investment requirement is discussed in detail in 4:12 of this chapter. E-1 treaty traders do not complete this section. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:35. The support letter and supporting documentation, Immigr. Proc. Handbook 4:35
Immigr. Proc. Handbook 4:35 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category V. Extensions and Other Post-Admission Issues A. Extensions of Stay References 4:35. The support letter and supporting documentation
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Apart from the information included on Form I-129, the main portion of the E extension application consists of the support letter and supporting documentation from the enterprise. The essential elements of the support letter are discussed in detail in 4:16, above. In the extension situation, the company letter should also explain the reason for the extension request, e.g., to complete temporary assignment in the United States, and should list the period of time for which the extension is requested (up to two years). Note that if the aliens period of stay has already expired, the letter must also cite to the extraordinary circumstances that led to the delay and that justifies approval of the late filing. Such late applications will be approved only if the delay was due to extraordinary circumstances, the alien has not otherwise violated his or her status, he or she is otherwise eligible for an extension, and he or she is not in removal proceedings. The E extension request on Form I-129 and E Supplement must be filed with the supporting documentation regarding the trading or investment enterprise that would have been filed with the initial nonimmigrant visa application at the consulate (see 4:17, above). Since the extension application is often the first application submitted by an E nonimmigrant to USCIS, it is important to document each point that will impact eligibility for E status. In addition, the form instructions suggest that two pay stubs should be included with the petition if the beneficiary is currently working in the United States, as evidence of maintenance of status. Pay stubs are not an absolute requirement, though adjudicators are accustomed to seeing them. Other evidence remains acceptable, such as a W-2 form or an employment letter. USCIS has also indicated that only single-sided copies of supporting documents should be used; double-sided copies should not be used. Sample Letter 4-5 illustrates a company letter in support of an extension request. (a). Sample Letter 4-5: Company letter in support of extension application Bureau of Citizenship and Immigration Services Chicago, Illinois Re: Application for Extension of Status of Ms. Susan SMITH (treaty trader) Dear Sir or Madam: This letter is written in support of the attached extension application (Form I-539) of Ms. Smith to continue in treaty trader (E-1) status. Ms. Smith was admitted to the United States in this status on 2012 Thomson Reuters. No claim to original U.S. Government Works. 105
[date] , valid through [date] . She requests an extension of this status through [date] . Our company, Argentina Import Company, is incorporated under the laws of Illinois, and is a wholly owned subsidiary of Argentina Import Company in Argentina, which is a publicly traded company incorporated in Argentina. Last year, our company imported heavy machinery and foodstuffs from Argentina to the United States worth $5 million (U.S.), and exported to Argentina commodities valued in excess of $3 million (U.S.). These figures are comparable to the levels maintained by our company for the last five years. We have thus continued for the last year to engage in a substantial amount of trade principally between the United States and Argentina. In fact, 100% of the business activity of the Argentina Import Company in the United States is devoted to U.S.-Argentina trade. This activity is evidenced by the attached annual report of our company for the last fiscal year. Ms. Smith has served our company for the last year in the capacity of general manager of our Chicago office. In this position, she is in charge of supervising all activities of our Chicago office, which employs five persons besides Ms. Smith, all of whom are U.S. citizens. Ms. Smith engages in all contract negotiations for sales of our products in the Midwest region, and also services existing contracts, assuring good relations with our clients. In this capacity she exercises discretion in pursuing business opportunities for our company, in close coordination with the parent company in Buenos Aires. We wish to employ Ms. Smith in her present position for an additional temporary period of one year, at the annual salary of $26,000 (U.S.). If you have any further questions about our companys activities, please feel free to contact me. Sincerely, John Jones President, Argentina Import Co. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:36. Filing fees, Immigr. Proc. Handbook 4:36
4:36. Filing fees
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 USCIS charges a standard filing fee, $325, for any I-129 filing, whether it is an initial petition, a change of status application, or an extension of stay application. Family members must file a separate application, Form I-539, to request a change of status or extension. The filing for this application is $290. The $290 fee applies regardless of the number of co-applicants listed on the form. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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4:37. Form I-907 and $1,225 fee in premium processing cases
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Legislation enacted in 2000 creates a premium processing adjudication program. Under the program, business petitioners may choose to pay a $1,225 fee to obtain expedited processing of their cases. Such cases must be adjudicated within 15 days. E-1 and E-2 extension and change of status requests filed on Form I-129 are eligible for expedited processing. In addition, when an I-539 application for a family member is concurrently filed with the I-129 petition where premium processing is requested, USCIS will also process the application within the 15 days without requiring an additional fee. Petitioners requesting premium processing must submit Form I-907 and the $1,225 fee required for such requests. The fee is separate from the standard filing fee for the I-129 petition described above. The premium processing fee must be paid by separate check or money order; do not include it in the same check as the usual filing fee for the I-129. Form I-907 is illustrated as Sample Form 5-2 ( 5:24 (a)), below. Note that there is a designated premium processing address at each center with a distinct Post Office box number, zip code, or other special designation. These addresses are listed in Ch 23, below. The program is discussed in detail in 5:24, below. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:38. Extension applications for family members, Immigr. Proc. Handbook 4:38
4:38. Extension applications for family members
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 A separate extension application must be filed for family members who are with the E principal in the United States. An extension application for family members must be submitted on Form I-539. Multiple family members may be included on the same application. The filing fee for the I-539 form is $290 regardless of the number of co-applicants listed on the form. A completed Form I-539 for family members of the E extension applicant is illustrated as Sample Form 4-5, below. Analysis of that form follows the illustration. The annotation covers all uses of the form by family members of principal E, H, L, O, P, and TN nonimmigrants. The latest version of Form I-539 is dated 01/19/11. Earlier versions of the form, dated 06/12/09 or later, remain acceptable until further notice.
(a). Sample Form 4-5: Form I-539 for E family members 0100090000035704000000001a03000000001a03000026060f002a06574d464301000000000001001fd300000000010000000 80600000000000008060000010000006c0000000000000000000000140000001400000000000000000000002802000029020 00020454d4600000100080600000f000000010000000000000000000000000000000005000000040000510100000e01000000 000000000000000000000068240500b01e0400460000002c00000020000000454d462b014001001c000000100000000210c0d b0100000060000000600000004600000000020000f4010000454d462b224004000c000000000000001e4009000c0000000000 0000244001000c000000000000003040020010000000040000000000803f214007000c0000000000000008400005580100004 c0100000210c0db01000000000000000000000000000000000000000100000089504e470d0a1a0a0000000d49484452000000 10000000100403000000eddde25200000030504c5445ffffffd6d6dac6c6caec5e60ec7a7cababae97979beef4f5b22425de4446ef 989aceced2bcbcc0ecedeffe3e41e6e6e9a20180540000000174524e530040e6d866000000097048597300000b1300000b13010 09a9c18000000964944415478da63d4aa9a9ac0c0c070846131c33b20e4c86158cc07041c1d314cdc9f1e3030fc6048635ac0c7f 0e901074326a373d87f860f0c0c9a4c67d2521fad0fcd6460026afdf979010303334704e75b11b5172011b695064ccd1f9818fefd 4db91cf34c8b99edcf7bb3c04f66192c0cccabc3631904d45918d837fce562f825c5cc6e7c4841e52007330b930b831bc3aa9fd30 1a47b2d39a3ac6bd40000000049454e44ae4260820000000840010824000000180000000210c0db0100000003000000000000 0000000000000000001b40004034000000280000000100000002000000000000bf000000bf000080410000804103000000000 0000015000000000015002100000008000000620000000c00000001000000150000000c00000004000000150000000c000000 04000000460000001400000008000000544e50500601000051000000c00000000000000000000000140000001400000000000 000000000000000000000000000100000001000000050000000300000008000000040000000000000008600ee001500000015 0000002800000010000000100000000100010000000000000000000000000000000000000000000000000000000000ffffff00 7fff740a7fff494c7fff740a7fff00007fff00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc7 2012 Thomson Reuters. No claim to original U.S. Government Works. 109
0000ffff000051000000bc01000000000000000000001400000014000000000000000000000000000000000000001000000010 000000500000006c000000bc0000000001000000000000c600880015000000150000002800000010000000100000000100080 000000000000000000000000000000000110000000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de0 0aeabab00efedec00413efe002524b2009b979700c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c 0c07070c010810101008080c0c07070b0b0b0b0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c070 20108100e0304080f0f0f0f0e0d0d020d010f08080f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0 f1003021003030e0d0e0d0e010f0f0f0f081005020310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a 0a0a0a0a0a0d0e04090109090901010909010a0a0a020d0309010109090109010901010a0a0c0203050109010901090109010a 0a0a070c030501010909010109090101010a0b0c02030304050606060606060606060708460000001400000008000000544e5 050070100004c0000006400000000000000000000001400000014000000000000000000000015000000150000002900aa0000 000000000000000000803f00000000000000000000803f0000000000000000000000000000000000000000000000000000000 000000000220000000c000000ffffffff460000001c00000010000000454d462b024000000c000000000000000e000000140000 000000000010000000140000000400000003010800050000000b0200000000050000000c0215001500030000001e000400000 007010400040000000701040045000000410b8600ee0010001000000000001500150000000000280000001000000010000000 0100010000000000000000000000000000000000000000000000000000000000ffffff007fff740a7fff494c7fff740a7fff00007fff 00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc70000ffff0000c3000000410bc60088001 0001000000000001500150000000000280000001000000010000000010008000000000000000000000000000000000011000 0000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de00aeabab00efedec00413efe002524b2009b97970 0c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c0c07070c010810101008080c0c07070b0b0b0b 0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c07020108100e0304080f0f0f0f0e0d0d020d010f080 80f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0f1003021003030e0d0e0d0e010f0f0f0f0810050 20310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a0a0a0a0a0a0d0e04090109090901010909010a0 a0a020d0309010109090109010901010a0a0c0203050109010901090109010a0a0a070c030501010909010109090101010a0b 0c020303040506060606060606060607080c00000040092900aa000000000000001500150000000000040000002701ffff0300 00000000Image 1 within document in PDF format. Analysis of Sample Form 4-5
Family Name. The information provided here should be for the first family member, e.g., the spouse of the principal alien. Other family members should be included on Supplement-1 to Form I-539. If this application is for multiple dependent children and the applicant has no spouse, simply choose one of the children to list here and include the others on Supplement-1 to Form I-539. The name included here should match the aliens name as listed on Form I-94, the aliens arrival record which he or she was given at the time of admission to the United States. Address and Phone Number. The address requested is the aliens temporary address in the United States, not his or her foreign address. A phone number where the applicant may be contacted during daytime hours should also be listed. This information will be used to communicate with the applicant (unless the aliens attorney or representative has attached Form G-28, Notice of Appearance, to the application). Note re address label: The form indicates that the applicant should submit the address label included on the second page of the form instructions. That address label would be used if the applicant submits his or her original I-94 form, in order to return the I-94 to the applicant. In practice, however, none of USCIS service centers requires the original Form I-94 to be submitted with an I-539 application. The aliens extension of stay or change of status is recorded by USCIS on a section of the approval notice, Form I-797, rather than on the aliens original I-94 form. If the original I-94 is submitted with Form I-539, the service center will probably ignore it, mark the extension or change of status on Form I-797, and the applicant might never see the original I-94 again. Therefore, the applicant should submit a copy of the I-94 form and not submit the address label. Country of Birth. This information should be found in the aliens passport. Note that the country of birth is requested; that country might be different from the current country of citizenship, which is listed on Form I-94. Therefore, check the passport rather than Form I-94 for the aliens country of birth. Country of Citizenship. This information should be found in the aliens Form I-94 arrival/departure record. Note that
the country of citizenship is requested; that country might be different from the current country of birth, which is listed on aliens passport. Therefore, check the I-94 form rather than the passport for the aliens country of citizenship. Date of Birth. This information should be found in the aliens passport. Social Security #. Many applicants will not have social security numbers because they have never worked in the United States. Family members of principal aliens in the H, O, P, R, and TN categories do not have permission to work in the United States. Spouses of principal E and L nonimmigrants may obtain permission to work in the United States from USCIS. Some aliens may have a social security number because of previous periods of U.S. stay with work permission (e.g., the alien was previously here in H-1B status) or because they are changing status from a work-authorized nonimmigrant category (e.g., L-1 to H-4). In addition, even aliens who have never had work authorization might have received a nonwork social security number for purposes of opening a bank account, enrolling in school, etc. If the applicant does not have a social security number, type none here. A#. This number is the alien registration number, most commonly assigned to aliens who become U.S. permanent residents. An alien might have an A # if he or she was previously a permanent resident, has previously been placed in exclusion or deportation proceedings, or has otherwise been involved with the DHS in some type of investigation or proceeding in which an A# was assigned. If the applicant does not have an A#, type none here. Date of Last Arrival. The aliens date of last arrival in the United States will be listed on the most recent I-94 card issued to the alien. It will appear in the stamp placed on the I-94 card by the immigration inspector at the port of entry. I-94 #. This number appears on the I-94 card in the upper left corner. Current nonimmigrant status. The letter designation of the aliens current nonimmigrant status will be handwritten on the I-94 card, in the appropriate space in the stamp placed on the card by the immigration inspector at the port of entry. If the alien has previously changed nonimmigrant status after initial admission to the United States, that change of status may be endorsed on the back of the I-94 card under Record of Changes. It might also be reflected on a replacement I94 card given to the alien at the time that the prior change was approved, or it might even be marked instead on Form I797, the notice of approval, rather than on the I-94 card. Place the letter designation for the current nonimmigrant category here, e.g., H-4, L-2, etc. Expiration of status. The expiration date of the aliens current nonimmigrant status will be handwritten on the I-94 card, in the appropriate space in the stamp placed on the card by the immigration inspector at the port of entry. If the alien has previously changed or extended his or her status since initial admission, the new expiration date may be endorsed on the back of the I-94 card under Record of Changes. It might also be reflected on a replacement I-94 card given to the alien at the time that the prior extension was approved, or it might even be marked instead on Form I-797, the notice of approval, rather than on the I-94 card. Persons who have remained beyond the date listed on I-94: eligibility for change of status or extension of stay. If the alien is no longer in valid nonimmigrant status because his or her period of authorized stay has already expired, the general rule is that he or she is not eligible to apply for an extension of stay or a change of nonimmigrant status. Failure to file before the expiration date may be excused, however, if the applicant demonstrates that: (1) the delay was due to extraordinary circumstances beyond the applicants control; (2) the length of the delay was reasonable; (3) the applicant has not otherwise violated his or her status; (4) the applicant is still a bona fide nonimmigrant; and (5) the applicant is not in removal proceedings. Application type. Box 1.a. should be checked for an extension of stay in the current nonimmigrant category. Box 1.b. should be checked if the alien is seeking to change to a different nonimmigrant category, e.g., from an F-2 family 2012 Thomson Reuters. No claim to original U.S. Government Works. 111
member of a student to an H-4 family member of a temporary worker. In the latter case, specify the classification being sought. Box 1.c. should not be checked by family members of E, H, L, I, P, R, and TN nonimmigrants. Number of applicants. Either Box 2.a. or 2.b. should be checked depending on whether the applicant is the only family member (e.g., the spouse of the principal alien) or other family members are included in the application (e.g., children of the principal alien). The total number of persons included in the application (all of the family members) should be listed if Box 2.b. is checked. The filing fee for the application is $290 regardless of the number of co-applicants listed on the form. Part 3, Item 1. Indicate the date through which the extension of stay is requested. If a change of status is being sought to a different nonimmigrant category, list the date through which the stay is being requested in that category. Extensions of stay for dependent family members of a principal E, H, L, O, P, R, and TN nonimmigrant will only be granted for as long as the principal aliens stay is extended. Therefore, the date listed should be the same as the date through which the principal aliens extension is requested on Form I-129, unless some reason exists for a shorter period of stay (e.g., the family members will return abroad before the principal alien). Changes of status for family members to the E, H, L, O, P, R, or TN nonimmigrant category can also be approved only for the same initial period permitted for the principal alien; therefore, the date listed in that case should also coincide with the date listed for the principal alien on Form I-129. Part 3, Item 2. When the principal alien in the E, H, L, O, P, R, or TN category has already received approval of an extension of stay or change of status, the yes box should be checked, and the filing receipt for the principal aliens Form I-129 should be listed here. If the principal aliens I-129 is still pending or is being filed concurrently with Form I539 for the family members, the no box should be checked. Part 3, Items 3 and 4. When the principal alien in the E, H, L, O, P, R, or TN category has already filed Form I-129 for an extension of stay or change of status, and the request is still pending, the box captioned Yes, previously filed and pending should be checked. When Form I-129 for the principal alien is being filed concurrently with Form I-539 for the family members, the box captioned Yes, filed with this application should be checked. In either case, the principal aliens name should be listed in the space provided. If Form I-129 has been filed already and is still pending, also list the USCIS service center office where it was filed and the filing date. This information can be obtained from the filing receipt received from the service center. Although in most instances involving family members of a principal alien in the E, H, L, O, P, R, or TN category, one of the yes boxes in Items 2 or 3 of Part 3 will be checked, there are instances when Form I-539 for family members will be filed without prior or simultaneous filing of Form I-129 for the principal alien. For example, E nonimmigrants are granted a new year of admission upon each return to the United States from a trip abroad; if the principal alien travels abroad on a regular basis but the family members do not travel at all, the family members will need an extension of stay even though the principal alien does not. The same holds true for TN nonimmigrants. Likewise, some family members of H or L nonimmigrants might have been granted shorter periods of admission than the principal alien, e.g., because the reciprocity schedule for the country of the family members citizenship is different from the schedule from the principal aliens country of citizenship; in that case, Form I-539 would be required for the family member even without a prior or concurrent I-129 filing to extend the principal aliens period of stay. In these cases, check the no box, and submit a copy of the principal aliens I-94 form indicating a currently valid period of stay. Passport information. Item 1 requires information about the family members passport. The applicants passport must be valid for all periods of time during his or her stay in the United States. If the passport will expire before the date through which extension of stay is requested, the applicant should affirm in a separate letter accompanying the application that he or she will have the passport extended to cover the period of requested stay. If the passport has expired at the time of filing the application, the applicant should first seek an extension of the passport before filing the application, so that he or she can affirm in the support letter that a passport extension request is pending. Foreign address. Although a foreign residence is not a statutory requirement for the E, H-1A, H-1B, O-1, R, and TN
nonimmigrant categories, a foreign address should still be listed for family members of principal aliens in one of those categories; it could be care of the principal aliens overseas employer or a relative or friend. A foreign residence is a requirement for the H-2A, H-2B, H-3, O-2, and P nonimmigrant categories; an address must be listed for family members of a principal alien in one of those categories, and that address should be a residence and not care of a foreign employer. Attorney or representative. Form I-539 requests information about the applicants attorney or representative on the first page of the form. If the applicant is filing the application without an attorney or representative, this space can be left blank. If the applicant is represented by an attorney or representative, the box should be checked indicating that Form G28, Notice of Appearance, is being filed with the application. The VOLAG # applies only to voluntary agencies given permission to file papers on behalf of aliens, principally agencies that aided aliens in filing legalization applications. The attorney state license number should be included if an attorney is representing the applicant. Some states, such as New York, do not have attorney state license numbers, and therefore none should be written in this space. Question 3.a. requires information regarding whether any of the applicants included on Form I-539 are currently seeking an immigrant visa. An applicant for an immigrant visa at a U.S consulate might still want to extend his or her stay in the United States in order to remain in the United States until the application is adjudicated and the immigrant visa issued. An extension should be approved in that case for family members of aliens in nonimmigrant categories for which immigrant intent is not a problemthe E, H-1A, H-1B, L, O-1, R, and TN categories. For family members of aliens in the other nonimmigrant categoriesthe H-2A, H-2B, H-3, O-2, and P categoriesan extension is likely to be a problem in these circumstances. Note that this question only asks about pending immigrant visa applications; therefore, pending adjustment applications (Form I-485) and immigrant visa petitions (Forms I-130, I-140, I-360, or I-526) are not covered by this question. The subsequent questions on the form, however, do cover those applications and petitions. Question 3.b. requires information about prior immigrant petitions filed on behalf of any of the applicants. A pending or approved immigrant visa petition should not affect the I-539 application for family members of aliens in nonimmigrant categories for which immigrant intent is not a problemthe E, H-1A, H-1B, L, O-1, R, and TN categories. For family members of aliens in the other nonimmigrant categoriesthe H-2A, H-2B, H-3, O-2, and P categoriesan extension is likely to be a problem in these circumstances. A prior petition that is not currently pending need not have an impact on the present application, particularly if the petition was abandoned or the subsequently-conferred permanent residence was abandoned. If the immigrant visa petition was denied, however, the reasons for the denial will need to be explained to assure USCIS that denial was not based on the applicants fraud or another basis upon which the applicant might now be excludable. If this question is answered yes, provide an explanation of the circumstances surrounding the previous immigrant visa petition, including the date and USCIS office of filing, and the result of the petitions adjudication. Question 3.c. requires information regarding whether any of the applicants included on Form I-539 have ever filed an application for adjustment of status. If an application for adjustment of status has been filed with USCIS and is currently pending, the applicant does not need to file an extension or change of status application; if an extension or change of status application is filed in these circumstances, it would be denied. Criminal activity in the United States, the subject of question 3.d.1., may be considered a violation of nonimmigrant status and therefore a basis for removal of the alien from the United States. The criminal activity undertaken after admission may also render the applicant deportable under one of the criminal grounds for removal listed in 237(a) of the INA. In this case, the change of status or extension application will be denied.
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The others parts of question 3.d. relate to activities undertaken at any time that may render the applicant deportable as a person who was inadmissible at the time of entry. Specifically, the queries solicit information to determine if the applicant engaged in genocide, the commission of any act of torture or extrajudicial killing, or religious persecution which would render the person ineligible for admission. In this case, the change of status or extension application will be denied. Question 3.e. requests information about activities of the applicants that are violations of nonimmigrant status. Such activities include employment without authorization. This question is intended to establish a record for further action against an applicant who answers yes or falsely answers no. Serious criminal penalties are possible for answering this or any other material question on the form falsely. A yes answer is likely to preclude approval of the application. Applicants who are currently in removal proceedings, the subject of question 3.f., will not have their applications approved while the proceedings are pending. If the Yes box is checked, indicate the name of the person in removal proceedings, the name of the immigration court with jurisdiction over the proceedings, the date proceedings were initiated, and the status of the proceedings (e.g., pending). This information should be listed on page 3 of this form and may be obtained from the notice to appear which initiated the proceedings against the alien. If the answer to question 3.g. is yes, the applicant must provide a complete explanation on page 3 of the application. Include the name of the person employed, the name and address of the employer, the weekly income and whether the employment was authorized by USCIS. If the employment was not authorized by USCIS, the I-539 application will not be approved. If the answer to question 3.g. is no, the form requires the applicant to fully describe how he or she is being supported, including the source (e.g., parent, spouse), amount (in dollars), and basis of support (e.g., parents income from employment, savings account, etc). Include the information on page 3 of the application form. For most family members of work-authorized aliens, it is also acceptable to use the same space on the application form to type Supported by spouse/parent; Form I-129 filed concurrently. Unlawful employment by change of status and extension applicants. If an applicant has engaged in employment in the United States, it must have been authorized by USCIS. The change of status or extension application will not be approved if the applicant engaged in unlawful employment. Family members in the H, O, P, R, and TN categories are not authorized to work in the United States. Spouses of principal E and L nonimmigrants may be granted permission to work in the United States by USCIS. Some family members who are using Form I-539 to change from a workauthorized nonimmigrant category, such as the L-1 category, to a category covering family members, such as the H-4 category, might have engaged in employment. An applicant who has ever been in J exchange visitor status, the subject of question 3.h., must provide information regarding the dates he or she was in the United States in J-1 or J-2 status and proof of J status (e.g., a copy of the DS2019 certificate of eligibility issued by the J sponsor or a copy of the passport reflecting J visa stamp). Aliens admitted in the J (exchange visitor) nonimmigrant category who are subject to the two-year foreign residence requirement of 212(e) of the INA, are not permitted to change their status unless they have received a waiver of that requirement or have fulfilled it. Also barred from a change of nonimmigrant status are persons who obtained J-1 status to receive graduate medical education or training. This bar does not apply, however, if the alien is granted a waiver of the two-year foreign residence requirement under 214(l) of the INA. Applicants statement. If the applicant reads and understands English, the first box should be checked. If the applicant is not fluent in English, the second box should be checked and the applicant should indicate the language used by the translator who assisted in the preparation of the application. Signature of applicant. The applicant listed in Part 1 of the form, is the one who should sign the application. If the
applicant listed on Form I-539 is a child under 14 years of age, the application may be signed on behalf of the child by the childs parent or legal guardian. The person who signs must also print and date the form. Certification of Interpreter/Address/Date. If the applicant is not fluent in English and was assisted by an interpreter in completing this form, the translator must sign the form here. The translator should also: (1) list the language used to communicate with the applicant; (2) print his or her name; (3) date the form; (4) provide a firm name (if any) and address; and (5) list his or her daytime phone number, fax number, and e-mail address. Certification of Preparer/Address/Date. If the applicant was assisted by another person (other than a translator) in completing this form, the other person must sign the form here. The preparer should also: (1) print his or her name; (2) date the form; (3) provide a firm name (if any) and address; and (4) list his or her daytime phone number, fax number, and e-mail address. Under 1996 legislation it is a criminal offense to fail to disclose a role in preparing or assisting in preparing, for a fee, an immigration-related document that is falsely madethat is, with knowledge or a reckless disregard of the fact that the document contains a false statement or material misrepresentation or has no basis in law or fact. Considering the significant penalty involved (five years of imprisonment and/or a substantial fine), the most cautious course of action is for any person who assisted in preparation of the form to include his or her name here (if more than one person assisted, an attachment can be included with the signatures of the other persons). Even when an attorney submits a notice of appearance on Form G-28 with the form, it is appropriate for the attorney to sign the form here as well, particularly in view of the regulatory definition of preparation adopted by USCIS. That definition is so broad that even an attorneys paralegals or secretaries would probably come within it if they worked on the form. Since those persons are paid a salary by the attorney and do not normally receive a fee from the applicant for the forms preparation, however, it is unlikely that anyone other than the attorney who receives the fee needs to sign here. Information on pending proceedings. If the Yes box was checked in Part 4, Question 3.f, indicate the name of the person in removal proceedings, the name of the immigration court with jurisdiction over the proceedings, the date proceedings were initiated, and the status of the proceedings (e.g., pending). This information may be obtained from the notice to appear which initiated the proceedings against the alien. Change of status and extension of stay applicants who are currently in removal proceedings will not have their applications approved while the proceeding is pending. Information on support. If the answer to question 3.g. in Part 4 is no, the form requires the applicant to fully describe how he or she is being supported, including the source (e.g., parent, spouse), amount (in dollars) and basis of support (e.g., parents income from employment, savings account, etc). Include the information on page 3 of the application form. For most family members of work-authorized aliens, it is also acceptable to use the same space on the application form to type Supported by spouse/parent; Form I-129 filed concurrently. Employment information. If the answer to question 3.g. in Part 4 is yes, the applicant must provide a complete explanation on page 3 of the application. Include the name of the person employed, the name and address of the employer, the weekly income and whether the employment was authorized by USCIS. Unlawful employment by change of status and extension applicants. If an applicant has engaged in employment in the United States, it must have been authorized by USCIS. The change of status or extension application will not be approved if the applicant engaged in unlawful employment. Family members in the H, O, P, R, and TN categories are not authorized to work in the United. Spouses of principal E and L nonimmigrants may be granted permission to work in the United States by USCIS. Some family members who are using Form I-539 to change from a work-authorized nonimmigrant category, such as the L-1 category, to a category covering family members, such as the H-4 category, might have engaged in employment. Supplement 1 2012 Thomson Reuters. No claim to original U.S. Government Works. 115
This supplement must be completed only if the I-539 application is being filed for multiple aliens. Multiple aliens may be included in an I-539 application when it is filed for dependent family members in the E, H, L, O, P, R, and TN nonimmigrant categories, and there is more than one family member. Fill in the information for the first alien in Part 1 of Form I-539, and include the required information for the other aliens in this supplement. In this case, information concerning the spouse is included on Form I-539 and Supplement 1 is used to list information concerning children. Name. The aliens name should match his or her passport (if he or she is outside of the United States) or his or her Form I-94 (if he or she is already in the United States). Form I-94 is the aliens arrival record that he or she was given at the time of admission to the United States. A copy of Form I-94 must be submitted with an extension, change of status, or reinstatement request on Form I-539. Date and Country of Birth. This information should be found in the aliens passport. Note that the country of birth is requested; that country might be different from the current country of citizenship, which is listed by the alien on Form I94. Therefore, check the passport rather than Form I-94 for the aliens country of birth. Country of Citizenship. This information should be found in the aliens I-94 form. Note that the country of citizenship is requested; that country might be different from the current country of birth, which is listed on the aliens passport. Therefore, check the aliens I-94 form rather than passport for the aliens country of citizenship. Social Security #. Aliens who are already working in the United States will almost always have social security numbers. Only if they are working directly for a foreign employer and are being paid outside of the United States will they lack a social security number. Such aliens might also have previously received work permission from USCIS for other reasons or during previous periods of stay in the United States (e.g., the alien was previously here in H-1B status). In addition, even aliens who have never had work authorization might have received a nonwork social security number for purposes of opening a bank account, enrolling in school, etc. If the applicant does not have a social security number, enter none in this space. A#. This number is the alien registration number, most commonly assigned to aliens who become U.S. permanent residents. An alien might have an A# if he or she was previously a permanent resident, has previously been placed in exclusion or deportation proceedings, or has otherwise been involved with the DHS in some type of investigation or proceeding in which an A# was assigned. If the applicant does not have an A#, enter none in this space. Date of Last Arrival. The aliens date of last arrival in the United States will be listed on the most recent Form I-94 issued to the alien. It will appear in the stamp placed on the I-94 by the immigration inspector at the port of entry. If the alien is not presently in the United States, enter N/A in this space. I-94 #. This number appears on the I-94 form in the upper left corner. If the alien is not presently in the United States, enter N/A in this space. Current nonimmigrant status. The letter designation of the aliens current nonimmigrant status will be handwritten on the I-94 form, in the appropriate space in the stamp placed on the card by the immigration inspector at the port of entry. If the alien has previously changed nonimmigrant status after initial admission to the United States, that change of status may be endorsed on the back of the I-94 under Record of Changes. It might also be reflected on a replacement I-94 form given to the alien at the time that the prior change was approved or it might be marked instead on Form I-797, the notice of approval, rather than on the I-94 form. Place the letter designation for the current nonimmigrant category here, e.g., B-1, F-1, H-4, etc. If the alien is not presently in the United States, enter N/A in this space. Note that if the alien is no longer in valid nonimmigrant status because his or her period of authorized stay has already expired, he or she is not eligible to apply for an extension of stay or a change of nonimmigrant status. Expiration of status. The expiration date of the aliens current nonimmigrant status will be handwritten on the I-94
form, in the appropriate space in the stamp placed on the form by the immigration inspector at the port of entry. If the alien has previously changed or extended his or her status since initial admission, the new expiration date may be endorsed on the back of the I-94 form under Record of Changes. It might also be reflected on a replacement I-94 form given to the alien at the time that the prior extension or change of status was approved, or it might be marked instead on Form I-797, the notice of approval, rather than on the I-94. If the alien is not presently in the United States, enter N/A in this space. Passport Information. Include the country in which the aliens passport was issued and the passport expiration date. All applicants should have a valid passport (including Canadians). Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
117
4:39. The notice of appearance (when represented)
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 When an attorney is representing the E extension applicant, the attorney must complete and submit Form G-28 with the application. The form should be placed on the top of the extension package, so that it is easily noticed by USCIS service center. If the attorney or representative does not file Form G-28, USCIS will handle the case as though the applicant is unrepresented. The main consequence is that USCIS will send communications about the case, including the final decision on the application, only to the E extension applicant and not to the attorney. On the other hand, when the attorney or representative files Form G-28, USCIS will send a copy of all communications both to the applicant and to the attorney or representative. The E petitioner must sign Part 1 of Form G-28 in order for USCIS to recognize the attorney or representative. Part 1 includes a consent by the E petitioner to allow disclosure of matters involving the application to the attorney or representative. The consent is considered necessary under the Privacy Act of 1974 in order for USCIS to disclose records involving the petitioner to the attorney or representative. If Part 1 of Form G-28 is not completed and signed by the petitioner, USCIS will not communicate with the attorney; rather, it will simply ignore the G-28 and communicate only with the petitioner. Note that only the E petitioner (the employer of the alien worker) needs to sign Form G-28, and not the alien worker (i.e., the E nonimmigrant) on whose behalf the extension application is filed. An authorized official of the employer may sign on behalf of the employer. A separate G-28 for the alien worker is not required to be filed with the extension required, even though both the employers continued permission to employ the alien worker and the alien workers extension of stay are both adjudication as part of the same Form I-129. One G-28 form, signed only by the party signing Form I-129, is all that must be submitted to meet USCIS rules. As a best practice, attorneys should include a separate, signed G-28 for each form in a petition package. For example, a package that includes an I-129 extension for a foreign national and an I-539 application to extend the status of the principals spouse, the attorney should obtain a signed G-28 from the I-129 petitioner and a signed G-28 from the I-539 applicant spouse. Each G-28 in the package should be completed to indicate that it relates to a specific form in the package. The latest version of Form G-28, Notice of Appearance, with a revision date of 04/22/09, follows. Earlier versions of the form cannot be used. Explanatory notes follow the illustration. A complete analysis covering all uses of the form is included in Ch 1, above.
4:39. The notice of appearance (when represented), Immigr. Proc. Handbook 4:39
(a). Sample Form 4-6: Form G-28 Notice of appearance 0100090000035704000000001a03000000001a03000026060f002a06574d464301000000000001001fd300000000010000000 80600000000000008060000010000006c0000000000000000000000140000001400000000000000000000002802000029020 00020454d4600000100080600000f000000010000000000000000000000000000000005000000040000510100000e01000000 000000000000000000000068240500b01e0400460000002c00000020000000454d462b014001001c000000100000000210c0d b0100000060000000600000004600000000020000f4010000454d462b224004000c000000000000001e4009000c0000000000 0000244001000c000000000000003040020010000000040000000000803f214007000c0000000000000008400005580100004 c0100000210c0db01000000000000000000000000000000000000000100000089504e470d0a1a0a0000000d49484452000000 10000000100403000000eddde25200000030504c5445ffffffd6d6dac6c6caec5e60ec7a7cababae97979beef4f5b22425de4446ef 989aceced2bcbcc0ecedeffe3e41e6e6e9a20180540000000174524e530040e6d866000000097048597300000b1300000b13010 09a9c18000000964944415478da63d4aa9a9ac0c0c070846131c33b20e4c86158cc07041c1d314cdc9f1e3030fc6048635ac0c7f 0e901074326a373d87f860f0c0c9a4c67d2521fad0fcd6460026afdf979010303334704e75b11b5172011b695064ccd1f9818fefd 4db91cf34c8b99edcf7bb3c04f66192c0cccabc3631904d45918d837fce562f825c5cc6e7c4841e52007330b930b831bc3aa9fd30 1a47b2d39a3ac6bd40000000049454e44ae4260820000000840010824000000180000000210c0db0100000003000000000000 0000000000000000001b40004034000000280000000100000002000000000000bf000000bf000080410000804103000000000 0000015000000000015002100000008000000620000000c00000001000000150000000c00000004000000150000000c000000 04000000460000001400000008000000544e50500601000051000000c00000000000000000000000140000001400000000000 000000000000000000000000000100000001000000050000000300000008000000040000000000000008600ee001500000015 0000002800000010000000100000000100010000000000000000000000000000000000000000000000000000000000ffffff00 7fff740a7fff494c7fff740a7fff00007fff00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc7 0000ffff000051000000bc01000000000000000000001400000014000000000000000000000000000000000000001000000010 000000500000006c000000bc0000000001000000000000c600880015000000150000002800000010000000100000000100080 000000000000000000000000000000000110000000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de0 0aeabab00efedec00413efe002524b2009b979700c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c 0c07070c010810101008080c0c07070b0b0b0b0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c070 20108100e0304080f0f0f0f0e0d0d020d010f08080f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0 f1003021003030e0d0e0d0e010f0f0f0f081005020310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a 0a0a0a0a0a0d0e04090109090901010909010a0a0a020d0309010109090109010901010a0a0c0203050109010901090109010a 0a0a070c030501010909010109090101010a0b0c02030304050606060606060606060708460000001400000008000000544e5 050070100004c0000006400000000000000000000001400000014000000000000000000000015000000150000002900aa0000 000000000000000000803f00000000000000000000803f0000000000000000000000000000000000000000000000000000000 000000000220000000c000000ffffffff460000001c00000010000000454d462b024000000c000000000000000e000000140000 000000000010000000140000000400000003010800050000000b0200000000050000000c0215001500030000001e000400000 007010400040000000701040045000000410b8600ee0010001000000000001500150000000000280000001000000010000000 0100010000000000000000000000000000000000000000000000000000000000ffffff007fff740a7fff494c7fff740a7fff00007fff 00007fff00007fff00007fff00007fff00007fff0000ffffffffdcdf0000cd4fffffd55f740accc70000ffff0000c3000000410bc60088001 0001000000000001500150000000000280000001000000010000000010008000000000000000000000000000000000011000 0000000000000000000ffffff00cac6c6009a98ef007c7aec00605eec004644de00aeabab00efedec00413efe002524b2009b97970 0c0bcbc00d2cece00dad6d600e9e6e600f5f4ee00010f0d0d0d0d020202020c0c0c07070c010810101008080c0c07070b0b0b0b 0c0108100d0f0f0f0c0b0b0b0b0b0b0b0c01081004040f0f0d070c070c0b0c07020108100e0304080f0f0f0f0e0d0d020d010f080 80f03030f10080f0f0e030c0d010f080f0f08040d030303050504030e010f080f0f1003021003030e0d0e0d0e010f0f0f0f0810050 20310080f0e0d0e010f0f0f0f081003051008080f0e0d0e04050606060a060a0a0a0a0a0a0a0d0e04090109090901010909010a0 a0a020d0309010109090109010901010a0a0c0203050109010901090109010a0a0a070c030501010909010109090101010a0b 0c020303040506060606060606060607080c00000040092900aa000000000000001500150000000000040000002701ffff0300 00000000Image 1 within document in PDF format. Analysis of Sample Form 4-6
Agency involved. With regard to I-129 forms filed on behalf of E nonimmigrants, check the USCIS box and list the form number involved, e.g., I-129. The latest edition of the G-28 no longer provides space for petition beneficiary information to be included. However, for administrative purposes, attorneys may want to enter the name of the E nonimmigrant in parentheses after the form number and petition type. Name, address, and status of persons represented. In I-129 cases, the petitioners name and address should be entered in Part 1.B., and the box labeled petitioner should be checked. I-129 beneficiaries should not be listed here because a 2012 Thomson Reuters. No claim to original U.S. Government Works. 119
petition beneficiary is not a recognized party for purposes of adjudication of the petition. As such, attorneys should not obtain a signed G-28 from the I-129 beneficiary, even in cases where the attorney represents both the petitioner and the beneficiary in a matter. File or Receipt No. If the principal petitioner or applicant listed Part 1 has an A # list that number here. In an initial nonimmigrant case, there would usually be no preexisting file number for the I-129 petitioner. In that case, leave this item blank or put none. Alternatively, if an I-129 form was already filed in this case, whether alone or with an accompanying G-28 filed by another attorney, list the receipt number for the form that is currently pending with USCIS. This information is useful when a petitioner/applicant is changing attorneys while a case is pending with USCIS. Privacy Act consent. The person consenting must sign and date the form. Failure to sign the form will result in USCIS ignoring the notice of appearance and dealing with the case as though the applicant is unrepresented. Communications will be made only with the party requesting the extension in that case, and the attorney or representative will not receive copies of notices or the decision from USCIS. Only the party filing a petition needs to sign the consent portion of the form, regardless of the parties being represented by the attorney. Therefore, in the case of an I-129 petition on behalf of an E nonimmigrant, the petitioner must sign the consent portion of the form, but not the beneficiary. USCIS has stated that a petition beneficiary is not a recognized party for purposes of adjudication of the petition. As such, when filing an I-129 petition, attorneys should not obtain a signed G-28 from the beneficiary, even in cases where the attorney represents both the petitioner and the beneficiary in a matter. In the case of corporate entities, it is also suggested that the name and title of the company signatory be entered next to the space for signature. Status of the attorney or representative. Box 1 should be checked for a licensed attorney undertaking initial representation of the E-2 applicant. List the state in which the attorney is licensed to practice law in the appropriate space and indicate whether the attorney is subject to any practice restrictions. An attorney should list all states in which he or she is admitted to practice and has an active license. In some cases, an attorney associated with the attorney undertaking initial representation may take part in the same matter; for example, one attorney might file the application, but a different attorney with the same firm might appear at USCIS for an interview in the same case. In that situation, the associated attorney must also submit Form G-28, and should check both Box 1 and Box 3. In Box 3, the associated attorney should indicate the name of the attorney who has already filed a G-28 in the case. The accredited representative box would rarely be checked in I-129 cases. Signature, address, name, bar number (if any), phone number, fax number, and e-mail of the attorney or representative. The G-28 must be signed by the attorney or representative. Make certain that the address is correct, because USCIS will use the address listed here to communicate with the attorney or representative, and send the final decision and approval notice in the case to that address. For each state bar membership listed in Part 2 of the form, attorneys must enter their bar or registration number in the appropriate space. If a state in which the attorney is admitted does not issue bar numbers, this space may be left blank with respect to that state. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:40. Filing the application and government processing, Immigr. Proc. Handbook 4:40
4:40. Filing the application and government processing
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Under current guidelines, all I-129 petitions on behalf of E-1 or E-2 treaty traders, investors, and their employees, must be filed with the CSC, regardless of the location of employment. This procedure continues to apply even though many immigration forms must now be filed with a USCIS lockbox facility for initial processing. As of September 15, 2010, there are no plans to introduce lockbox processing for Form I-129, the nonimmigrant worker petition. The jurisdiction and addresses for each Service Center are included in Ch 23. That chapter also sets forth the general procedures that must be followed in filing petitions or applications with SCs as well as the general instructions on packaging petitions/applications. Note that cases requesting premium processing must be sent to the special addresses at the Service Centers designated for such requests as listed in Ch 23, below. When Form I-539, Application to Extend/Change Status, for a dependent spouse or child accompanies the principals Form I129, the entire package is filed with the CSC. Similarly, if Form I-765, Application for Employment Authorization, is filed for an E spouse together with the I-129/I-539 package, the entire I-129/I-539/I-765 package is filed with the CSC. Concurrently filed applications for family members will not be separated. On the other hand, if dependents are filing for benefits separately from the principal nonimmigrant (i.e., an I-539 is filed alone), the I-539 form must be submitted to the Dallas Lockbox Facility, regardless of the applicants residence. The specific address for the facility is set forth in Ch. 23, below. This filing procedure applies to I-539 filings by dependents when the application is not submitted concurrently with the principals I-129. The application will be initially processed by the lockbox facility and routed to the appropriate Service Center for final adjudication, i.e., the center where the principals I-129 is pending or the center that has approved the principals I-129. If the related I-129 is still pending, include a copy of the filing receipt (or transfer notice) for the principals Form I-129 with the I-539 package. If the I-129 has been already approved, the I-539 package for dependents should include a copy of the principals approval notice. (a). Employment during pendency of the extension application Under USCIS rules, an E principal alien (but not family members) does not need explicit permission from USCIS to work for the employer through which he or she qualifies for E status; employment authorization is considered incident to valid E status. This implicit employment authorization continues during the time when an extension of stay application is pending, up 2012 Thomson Reuters. No claim to original U.S. Government Works. 121
to 240 days after the expiration of the prior period of stay. If USCIS has not ruled on the extension application during the 240-day period, the aliens permission to work in the United States ends. He or she must stop working at that point until the extension request is approved. An E alien who is in this situation might find it advantageous to depart the United States, if his or her visa is still valid, and be readmitted for an additional year, rather than being forced to suspend employment for an indefinite period. (b). Responding to requests for evidence During the adjudication process, USCIS sometimes will request that additional evidence be submitted. Such requests are made on Form I-797C and are commonly known as requests for evidence or RFEs. Under the latest policy guidelines on RFE timeframes issued in July 2011, RFEs for most forms, including I-129 forms, will have a standard response time of 84 days. In addition, if an RFE is served by mail, the applicant will have an extra three days to respond. The revised instructions were issued to provide greater consistency in the issuance of RFEs. Note that adjudications officers retain some discretion to reduce response times in specific cases where warranted by the circumstances, but must get supervisor approval in order to do so. As a result, when responding to an RFE, attorneys should follow the actual response time frame set forth in the RFE. See Ch. 23, below. (c). Travel while extension application is pending Travel outside the United States while an extension of stay application is pending with USCIS is not considered an abandonment of the application, and, as a result, the extension request may be granted notwithstanding the trip abroad. However, the extension applicant may still have problems returning to the U.S. in these circumstances since his or her E visa may have expired or may be limited to one entry (and, therefore, the alien may lack proper travel documentation). In the latter cases, he or she will need to obtain a new E nonimmigrant visa abroad before returning to the United States. (d). Business validation Petitioning employers could see questions from USCIS about their commercial activities, structure, and employee population, as the agency begins a beta test of the Validation Instrument for Business Enterprises (VIBE), a program that will use Dun & Bradstreet (D&B) databases and other sources to verify employer business information provided in certain types of employment-based petitions. VIBE is a tool that USCIS will use in its adjudications of certain employment-based immigration petitions. VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ foreign workers. VIBE will allow USCIS to electronically receive commercially available information from an independent information provider (IIP) about a petitioning company or organization. A USCIS officer will review all information received through VIBE along with the evidence submitted by the petitioner, and will use the information provided from VIBE to verify the petitioners qualifications. In the nonimmigrant context, VIBE is to be used to verify Form I-129 nonimmigrant petitions for E, H-1B, L-1, L blanket, and TN classification, among others. More detailed information regarding the agencys planned use of VIBE is provided in Ch. 23, below. (e). Approval or denial of an extension request In the case of an extension of stay approval in which the alien is in the United States, Form I-797A is used to notify the petitioner of an approval. In such cases, the petitioner should tear off the lower portion of the form and give it to the beneficiary. The lower portion of Form I-797A contains a new Form I-94 which should be stapled to the original I-94 issued to the alien upon his or her admission. The I-94 form must be submitted to the DHS when leaving the United States. The lower portion of the form also has another part which contains information on the extension approval; this part of the approval notice should be kept with the aliens personal records and must not be submitted to the DHS when leaving the United States. This part of the new Form I-797A is used to renew the aliens visa under procedures discussed below. If the extension is denied, the denial is not subject to a formal appeal. The treaty alien can seek reconsideration by filing a motion to reconsider. However, the aliens period of lawfully authorized stay in the U.S. will generally have already expired by this time, and the motion to reconsider will not stop the DHS from requiring the departure of the alien and eventually bringing deportation proceedings against him or her. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:41. Visa reissuance, Immigr. Proc. Handbook 4:41
4:41. Visa reissuance
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 A treaty aliens visa is often valid for five years (see Appendix 2 for the exact period of validity for the aliens country). Some treaty aliens, however, remain stationed in the U.S. for a period longer than this five-year period of validity. Thus, the alien must obtain a new E visa on the first trip outside of the U.S. after the five-year period of the visas validity expires; without the new visa the alien cannot reenter the U.S. even if he or she has received an extension of stay while in the United States. The options available to foreign nationals who need to renew a visa are discussed in Ch 10, below. Visa reissuance can be completed by visiting a U.S. consulate (preferably the one that issued the original visa) and presenting documentation that all of the pertinent facts regarding the treaty enterprise remain the same. The forms and procedures are the same as those for the original visa issuance, described in 4:14 to 4:19, 4:21 to 4:26, and Ch 10, except that extensive documentation on the treaty enterprise can be replaced with documentation that the enterprise remains an active enterprise that still qualifies for treaty consideration. It is likely that the consulate will have the treaty enterprise and the alien update the information included on Form DS-156E, the form which is completed as a supplement to the basic nonimmigrant visa application. Domestic visa revalidation discontinued. The State Department stopped accepting applications for domestic visa revalidation on July 16, 2004. The domestic revalidation program was suspended because of increased interview requirements for nonimmigrants, as well as the requirement that visas issued after October 26, 2004 contain biometric identifiers (fingerprints and facial scans). All U.S. consular posts now collect fingerprints and photographs from visa applicants in order to comply with the deadline. However, the State Departments domestic Revalidation Unit was not equipped to collect the required biometrics or to conduct individual interviews. Visa reissuance for overstayers. Legislation enacted in 1996 requires certain nonimmigrants to submit their applications for visa reissuance at a consulate located in the country of the aliens nationality. This requirement is applicable to a person who was issued a nonimmigrant visa in the past, was admitted on the basis of that nonimmigrant visa, and remained in the United States beyond the period of stay authorized by USCIS. Such a visa is considered to be void and the applicant cannot be readmitted into the United States after the overstay unless a new visa is issued. In addition, the alien is not eligible for further nonimmigrant visa issuance except in the country of the aliens nationality. Once an overstay covered by the 1996 law has occurred, even if the total period of overstay amounted to one day, all subsequent nonimmigrant visa applications must be 2012 Thomson Reuters. No claim to original U.S. Government Works. 123
filed at a consulate located within the aliens country of nationality. The 1996 legislation is discussed in detail in Ch 10, below. Note also that prior periods of unlawful presence in the United States may also render the alien inadmissible and ineligible for a nonimmigrant visa (see Ch 19). Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
4:42. Persons ineligible for extensions of stay, Immigr. Proc. Handbook 4:42
4:42. Persons ineligible for extensions of stay
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Persons who are out-of-status at the time of filing the extension application, and who cannot justify a late filing of an extension request, must apply for an E nonimmigrant visa abroad. Furthermore, if the applicant overstayed his or her period of authorized admission, the applicant will be required to submit his or her visa application at the consulate located in the country of the aliens nationality. A third country consulate will not process the application unless the alien can establish extraordinary circumstances. Under prior law, persons who were ineligible for an extension because they had overstayed their period of lawful admission could obtain a nonimmigrant visa abroad at a visa issuing post in Canada or Mexico without needing to travel to their home country. Under the overstay provision, nonimmigrant visa processing at a third country consulate is no longer possible in these situations unless extraordinary circumstances are shown. The overstay provision is discussed in detail in Ch 10, below. It should be noted that persons who are in unlawful status for significant periods of time (181 days or more) may be subject to grounds for inadmissibility relating to unlawful periods in the United States upon their departure. Persons subject to the inadmissibility grounds for unlawful periods are ineligible for nonimmigrant or immigrant visa issuance for three or 10 years, depending on the length of the period of unlawful presence. Agency guidance on the inadmissibility grounds, which were added by IIRIRA is discussed in detail in Ch 12, below. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:43 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category V. Extensions and Other Post-Admission Issues B. Other Post-Admission Issues References 4:43. Changes of employer or corporate structure
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 An E nonimmigrant might decide to change employers while in the United States. If he or she wants to change to an employer that cannot qualify the employee for E statusthat is, the employer is not at least 50%-owned by nationals of the same country as the E nonimmigrantthen the new employer usually must petition USCIS to employ the alien in the H-1B category if the alien can meet the requirements of that category and if the annual cap on issuance of H-1B visas has not been reached (see the H-1B Handbook for further information). Before the alien can commence employment for the new employer, he or she must apply for a change of nonimmigrant status and receive approval from USCIS in the form of an endorsement of the approved change of status on his or her approval notice, Form I-797A. If the alien wants to change to another employer through which the alien can qualify for E status, as often happens because the alien has contacts with other nationals of his or her country, the procedure is different. In this case, the alien must file a written request with USCIS for permission to change employers, supported by evidence that the alien will still be classifiable as a treaty alien with the new employer. Under USCIS rules, the request for change of E employers must be filed on Form I-129 and the E Supplement. This form is illustrated as Sample Form 4-4 in 4:34, above. The forms used for filing the request for change of E employers are identical to the forms for the E extension request, described above. The procedures are also the same as for E extensions. The company letter and documentation in support of the request for change of E employers should cover the following issues: (1) the qualifications of the employer as an E enterprise. If the employer already has E employees in the United States, this issue should be relatively straightforward because the package of evidence already presented to the U.S. consulate abroad in qualifying the employer as an E enterprise can be submitted. If the employer has not previously obtained E status for any employees, then the documentation that must be presented is similar to that for a new case, as presented in 4:17 of the Handbook. (2) the nationality of the employer and the identical nationality of the alien. The alien must have the same nationality as the treaty enterprise; the enterprises nationality is established by the methods described in 4:10, above. (3) the qualifying position to be filled by the alien. The alien must be the principal investor, or be filling a managerial or executive position, or one involving skills essential to the enterprise. It is increasingly common for companies, both foreign-owned and domestic, to be acquired by other companies or to undergo other significant changes in ownership through mergers or the companys acquisition of another firm. In situations in which the aliens employer undergoes a significant change in ownership, either by acquisition, merger, or other action, the situation must be carefully evaluated to assure that the employer can still qualify its employees for treaty status. Even if the employer continues to qualify as a treaty enterprise, significant changes, particularly those that result in a change of name for the employer, should be reported to USCIS and the U.S. consulate where the enterprise originally presented its documents to
4:43. Changes of employer or corporate structure, Immigr. Proc. Handbook 4:43
qualify its employees for E status. Although such notification is not required by any USCIS or State Department rule, failure to do so may cause difficulties when an extension of stay or new visa is sought, because the change of name will highlight that a significant change has occurred in the corporate status requiring reassessment of treaty eligibility. An important reason to undertake the notification is that the name of the employer is annotated directly under the E visa in the aliens passport at the time of visa issuance, and a change in names could present problems for the alien in seeking readmission to the United States after a temporary trip abroad. The Visa Office in Washington, D.C. will correct the annotation of the employers name under the visa, but only if it is sent a copy of the letter notifying USCIS of the change in corporate circumstances. The aliens passport should be sent to the Visa Office following the same procedures for visa revalidation discussed above. Note that the alien can continue working for a qualifying enterprise without receiving any acknowledgment of the letter of explanation sent to USCIS or the U.S. consulate abroad. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Immigr. Proc. Handbook 4:44 Immigration Procedures Handbook Database updated November 2011 Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo Chapter 4. The E Visa Category V. Extensions and Other Post-Admission Issues B. Other Post-Admission Issues References
4:44. Change of address reports and special registration
Wests Key Number Digest Wests Key Number Digest, Aliens, Immigration, and Citizenship 191 Under current regulations, all foreign nationals who are 14 or older and who remain in the United States for 30 days or longer, including nonimmigrants and legal permanent residents, must report each personal change of address and new address within 10 days of the change. Only certain diplomats and employees of international organizations are exempt from the rule. Changes of address reports are made on Form AR-11. Though the change of address requirement and its accompanying form have existed for several years, enforcement has been rare. Since September 11, 2001, however, as a result of the countrys heightened state of alert and increased interest in tracking the whereabouts of foreign nationals, DHS has stated that it will enforce the existing change of address requirement and there have been reports of increased enforcement actions in this area. Failure to comply with the change of address rules may lead to dire circumstances. Each violation of this requirement is punishable by a fine of up to $200 and imprisonment for 30 days. In addition, a violation may constitute a ground for removal unless the foreign national establishes that the failure was reasonable, excusable or was not willful. A detailed discussion covering the reporting obligation is included in Ch 11, below. Apart from the general reporting requirement, the National Security Entry-Exit Registration System (NSEERS or special registration) obligated foreign nationals from numerous countries of concern to comply with special screening, reporting, and departure requirements. In April 2011, however, DHS announced that it will no longer register foreign nationals in NSEERS. The announcement effectively ends the controversial security screening program, which had been in place for nationals of designated countries since 2002. DHS has determined that other existing security programsincluding the USVISIT entry-exit systemachieve the same results. The suspension of special registration is welcome news for travelers from the designated countries of concern and for their employers. Individuals who were subject to NSEERS faced lengthy inspections at U.S. ports of entry and had less flexibility when departing the United States, since they could leave only through specific ports and were subject to follow-up inspection on departure. These requirements were especially burdensome for frequent travelers. Note, however, that questions about past compliance with NSEERS could still arise. Foreign nationals who were specially registered in the past and are seeking immigration benefits may be asked to demonstrate that they complied with program requirements during the time that NSEERS was in effect. More detailed information regarding the program is included in Ch. 11, below. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

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Research References, Immigr. Proc. Handbook Ch. 4 Refs.

2012 Thomson Reuters. No claim to original U.S. Government Works.

Introduction, Immigr. Proc. Handbook Ch. 4 Introduction

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4:1. Coverage of the E category, Immigr. Proc. Handbook 4:1

Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

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4:2. Duration of stay

4:3. Application process, Immigr. Proc. Handbook 4:3

4:3. Application process

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4:4. Special conditions

4:5. Alternatives to the E category, Immigr. Proc. Handbook 4:5

4:5. Alternatives to the E category

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4:6. Family members of the E visa holder

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4:8. The first requirement: a treaty of commerce and..., Immigr. Proc....

Ethiopia Finland France Germany Honduras Iran

Oman Pakistan Paraguay Philippines Poland Serbia

4:8. The first requirement: a treaty of commerce and..., Immigr. Proc....

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4:10. The third requirement: nationality of the employee or principal

4:11. Special requirements for traders, Immigr. Proc. Handbook 4:11

4:11. Special requirements for traders, Immigr. Proc. Handbook 4:11

4:11. Special requirements for traders, Immigr. Proc. Handbook 4:11

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4:12. Special requirements for investors, Immigr. Proc. Handbook 4:12

4:12. Special requirements for investors, Immigr. Proc. Handbook 4:12

4:13. Special requirements for Canadian and Mexican..., Immigr. Proc....

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4:14. The process for obtaining E status (generally)

4:15. Usual application papers, Immigr. Proc. Handbook 4:15

4:16. The support letter, Immigr. Proc. Handbook 4:16

4:16. The support letter, Immigr. Proc. Handbook 4:16

4:16. The support letter, Immigr. Proc. Handbook 4:16

4:16. The support letter, Immigr. Proc. Handbook 4:16

4:16. The support letter, Immigr. Proc. Handbook 4:16

4:16. The support letter, Immigr. Proc. Handbook 4:16

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4:17. Supporting documentation, Immigr. Proc. Handbook 4:17

4:17. Supporting documentation, Immigr. Proc. Handbook 4:17

Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

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4:18. E supplement to the nonimmigrant visa application (DS-156E)

4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....

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4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....

4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....

4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....

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4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....

4:18. E supplement to the nonimmigrant visa application..., Immigr. Proc....

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4:19. Nonimmigrant visa application for E-1 or E-2 nonimmigrant (DS-160)

4:19. Nonimmigrant visa application for E-1 or E-2..., Immigr. Proc....

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4:21. Generally, Immigr. Proc. Handbook 4:21

4:22. Procedures when prescreening is utilized, Immigr. Proc. Handbook 4:22

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4:25. Visa issuance, Immigr. Proc. Handbook 4:25