9 FAM 402.9 TREATY TRADERS, INVESTORS, AND SPECIALTY OCCUPATIONS VISAS (2024)

UNCLASSIFIED (U)

9 FAM 402.9

Treaty Traders, Investors, and Specialty Occupations - EVisas

(CT:VISA-1845; 10-05-2023)
(Office of Origin: CA/VO)

9 FAM 402.9-1 STATUTORY ANDREGULATORY Authorities

9 FAM 402.9-1(A) Immigrationand Nationality Act

(CT:VISA-1; 11-18-2015)

INA 101(a)(15)(E) (8 U.S.C. 1101(a)(15)(E)); INA101(a)(45) (8 U.S.C. 1101(a)(45)); INA 214(e)(6) (8 U.S.C. 1184(e)(6)); INA214(g)(11) (8 U.S.C. 1184(g)(11)); INA 214(i)(1) (8 U.S.C. 1184(i)(1)); INA214(j)(2) (8 U.S.C. 1184(j)).

9 FAM 402.9-1(B) Code ofFederal Regulations

(CT:VISA-1; 11-18-2015)

22 CFR 41.51.

9 FAM 402.9-1(C) Public Law

(CT:VISA-1; 11-18-2015)

Public Law 107-124.

9 FAM 402.9-2 Overview of e visas

(CT:VISA-1765; 05-01-2023)

a. Treaty Trader (E-1) and Treaty Investor (E-2) visasare for citizens of countries with which the United States maintains treatiesof commerce and navigation. The applicant must be coming to the United States solelyto engage in substantial trade, including trade in services or technology, inqualifying activities, principally between the United States and the treatycountry (E-1), or to develop and direct the operations of an enterprise inwhich the applicant has invested a substantial amount of capital (E-2), or towork in the enterprise as an executive, supervisor, or essentially skilledemployee.

b. Although this classification mandates compliancewith a lengthy list of requirements, many of these standards are subject to theexercise of a great amount of judgment and discretion. You should seek to beflexible, fair, and uniform in adjudicating E visa applications. You must alsoremember that the basis of this classification lies in treaties which wereentered, at least in part, to enhance or facilitate economic and commercialinteraction between the United States and the treaty country. It is with thisspirit in mind that cases under INA 101(a)(15)(E) should be adjudicated.

c. As in the case of any visa application, the burdenof proof to establish eligibility rests with the applicant. If the applicant’squalification for E-1 or E-2 classification is uncertain, you may requestwhatever documentation is needed to overcome that uncertainty.

d. For training resources and adjudication tools, referto the E Visa Portal on CAWeb.

9 FAM 402.9-3 ClassificationCodes

(CT:VISA-1828; 09-12-2023)

22 CFR 41.12 identifies the following visa classificationsymbols for treaty trader, treaty investors or specialty occupation employees inaccordance with INA 101(a)(15)(E):

9 FAM 402.9-4 GeneralRequirements for E-1 and E-2 Visas

9 FAM 402.9-4(A) QualifyingTreaty or Equivalent

(CT:VISA-1845; 10-05-2023)

INA 101(a)(15)(E) requires the existence of a qualifyingtreaty of commerce and navigation between the United States and a foreign Statefor E visa classification to be accorded to nationals of that foreign State.Such qualifying treaties may include treaties of Friendship, Commerce andNavigation and Bilateral Investment Treaties. Countries whose nationals may beaccorded nonimmigrant classification under INA 101(a)(15)(E) pursuant to aqualifying treaty, or pursuant to legislation enacted to extend that sameprivilege, are listed in 9 FAM402.9-10 below.

9 FAM 402.9-4(B) Nationality

(CT:VISA-1641; 10-18-2022)

a. The treaty trader or investor must, whether anindividual or business, possess the nationality of the treaty country. Thenationality of a business is determined by the nationality of the individualowners of that business.

b. Country of Incorporation:The country of incorporation is irrelevant to the nationality requirement for Evisa purposes. In cases where a corporation is sold exclusively on a stockexchange in the country of incorporation, however, one can presume that thenationality of the corporation is that of the location of the exchange. Theapplicant should still provide the best evidence available to support such apresumption. In the case of a multinational corporation whose stock isexchanged in more than one country, the applicant must satisfy you that thebusiness possesses the nationality of the treaty country. In view of thecomplex corporate structures in these cases, seek Departmental guidance when necessary,by submitting an AO request to L/CA.

c. Fifty Percent Rule:Pursuant to 22 CFR 41.51(b)(2)(ii), nationals of the treaty country must own atleast 50 percent of the business in question when the investor is an organization,and the applicant is an employee. In corporate structures one looks to thenationality of the owners of the stock. If a business in turn owns anotherbusiness, you must review the ownership of each business structure to determinewhether the parent organization possesses the requisite 50 percent nationalityof the treaty country. Pursuant to 22 CFR 41.51(b)(11), if the applicant isthe investor who is coming solely to develop and direct the enterprise, thenthe applicant must show that they control or will control the enterprise.Normally such control is shown through at least 50 percent ownership by theapplicant, but it can also be shown by possession of operational control(through a managerial position or other corporate device) or by other means. Merelyoccupying a managerial position, however, is not sufficient to meet thisrequirement if the applicant does not and will not control the enterprise.

d. Dual Nationality of Trader orInvestor: Except in the case in which an enterprise is owned andcontrolled equally (50/50) by nationals of two treaty countries, a business forwhich E visa status is sought may have only one qualifying nationality. In thecase of dual national owner(s), a choice must be made by the owner(s) as towhich nationality shall be used. The owner and all E visa employees of thecompany must possess the nationality of the single E visa qualifying countryand hold themselves as nationals of that country for all E visa purposesinvolving that company, regardless of whether they also possess the nationalityof another E visa country. When a company is equally owned and controlled bynationals of two different treaty countries, employees of either nationalitymay obtain E visas to work for that company.

e. U.S. LPR Status of Trader orInvestor: A trader or investor with the nationality of a treaty countrybut who holds U.S. LPR status does not qualify to bring in employees under INA101(a)(15)(E). Moreover, stock shares owned by U.S. LPRs cannot be consideredin determining the nationality of the business.

9 FAM 402.9-4(C) Intent toDepart Upon Termination of Status

(CT:VISA-1845; 10-05-2023)

An applicant for an E visa need not establish intent toproceed to the United States for a specific temporary period, nor does anapplicant for an E visa need to have a residence in a foreign country which theapplicant does not intend to abandon. The applicant may sell their residenceand move all household effects to the United States. The applicant’sexpression of an unequivocal intent to depart the United States upontermination of E status is normally sufficient. An applicant who is thebeneficiary of an IV petition will need to satisfy you that their intent is to depart the United States atthe end of their authorized stay, and notstay in the United States to adjust status or otherwise remain in the UnitedStates.

9 FAM 402.9-4(D) Physical OfficeSpace

(CT:VISA-1111; 07-17-2020)

An applicant does not necessarily need a physical office spaceto qualify for an E visa. Although having physical office space may be relevantin determining whether the requirements for an E visa have been met, it is nota requirement to qualify for the visa.

9 FAM 402.9-5 Requirements forE-1 Treaty Trader Visas

9 FAM 402.9-5(A) Evaluating E-1Treaty Trader Applications

(CT:VISA-1641; 10-18-2022)

a. In adjudicating E-1 visa applications, you mustdetermine whether the:

(1) Requisite treaty exists (see 9 FAM 402.9-4(A) above and 9 FAM 402.9-10 below);

(2) Individual and/or business possess the nationalityof the treaty country (see 9FAM 402.9-4(B) above);

(3) Activities constitute trade within the meaning ofINA 101(a)(15)(E) (see 9 FAM402.9-5(B) below);

(4) Applicant must be coming to the United States solelyto engage in substantial trade (see 9 FAM 402.9-5(C) below);

(5) Trade is principally between the United States andthe treaty country of the applicant's nationality (see 9 FAM 402.9-5(D) below);

(6) Applicant, if an employee, is destined to an executive/supervisoryposition or possesses skills essential to the firm’s operations in theUnited States (see 9 FAM402.9-7(B) and 9 FAM402.9-7(C) below); and

(7) Applicant intends to depart the United States whenthe E-1 status terminates (see 9FAM 402.9-4(C) above).

b. All E-1 principal visa applicants must also submitthe Form DS-156-E. The Form DS-156-E must be scanned into the applicant'srecord. E-1 derivatives do not need to submit Form DS-156-E.

9 FAM 402.9-5(B) Trade for E-1Purposes

(CT:VISA-1641; 10-18-2022)

a. Elements of Trade: Trade forE-1 purposes has three requirements:

(1) Trade must constitute an exchange;

(2) Trade must be international in scope; and

(3) Trade must involve qualifying activities.

b. Trade Entails Exchange:There must be an actual exchange, in a meaningful sense, of qualifyingcommodities such as goods, moneys, or services to create transactionsconsidered trade within the meaning of INA 101(a)(15)(E)(i). An exchange of agood or service for consideration must flow between the two treaty countriesand must be traceable or identifiable. However, the fact that proceeds fromservices performed in the United States may be placed in a bank account in atreaty country does not necessarily indicate that meaningful exchange hasoccurred if the proceeds do not support any business activity in the treatycountry. Title to the trade item must pass from one treaty party to the other.

c. Trade Must be International:The purpose of these treaties is to develop international commercial tradebetween the two countries. Development of the domestic market withoutinternational exchange does not constitute trade in the E-1 visa context.Thus, engaging in purely domestic trade is not contemplated under thisclassification. The traceable exchange in goods or services must be betweenthe United States and the other treaty country.

d. Trade Must be in Existence:An applicant cannot qualify for E-1 classification to search for a tradingrelationship. Trade between the treaty country and the United States mustalready be in progress on behalf of the individual or firm. Existing tradeincludes successfully integrated contracts binding upon the parties that callfor the immediate exchange of qualifying items of trade.

e. In the rapidly changing business climate with anincreasing trend toward service industries, many more service-based businessmodels, whether listed below or not, might benefit from E-1 visaclassification.

f. To constitute trade in a service for E-1 purposes,the provision of that service by an enterprise must be the purpose of thatbusiness and, most importantly, must itself be the saleable commodity which theenterprise sells to clients. The term “trade” as used in thisstatute has been interpreted to include international banking, insurance,transportation, tourism, communications, and newsgathering activities. (Applicantsengaged in newsgathering activities, however, should usually be classifiedunder INA 101(a)(15)(I)). These activities do not constitute an all-inclusivelist but are merely examples of the types of services that have been found tobe legitimate types of E-1 trade. Essentially, any service item commonlytraded in international commerce would qualify.

9 FAM 402.9-5(C) SubstantialTrade

(CT:VISA-1641; 10-18-2022)

a. The word “substantial” is intended todescribe the flow of the goods or services that are being exchanged between thetreaty countries. The trade must be a continuous flow that should involvenumerous transactions over time. You should focus primarily on the volume oftrade conducted but you may also consider the monetary value of thetransactions as well. Although the number of transactions and the value ofeach transaction will vary, greater weight should be accorded to casesinvolving more numerous transactions of larger value.

b. The smaller businessman should not be excluded ifdemonstrating a pattern of transactions of value. Thus, proof of numeroustransactions, although each may be relatively small in value, might establishthe requisite continuing course of international trade. Income derived fromthe international trade that is sufficient to support the treaty trader andfamily should be considered favorably when assessing the substantiality oftrade in a case.

c. The word "solely" is often understood as"only" or "not involving anything else;" however, asintended in the usage of the requirement for an E-1 visa it is more interchangeablewith "principally," "mostly," or "overall." Thepredominant reason for travel to the United States must be to engage insubstantial trade; however, an ancillary or coincidental purpose of travel doesnot preclude an applicant from being able to establish eligibility for the E-1visa.

9 FAM 402.9-5(D) Trade Must BePrincipally Between United States and Country of Applicant’s Nationality

(CT:VISA-1845; 10-05-2023)

a. The general rule requires that over 50 percent ofthe total volume of the international trade conducted by the treaty traderregardless of location must be between the United States and the treaty countryof the applicant’s nationality. The remainder of the trade in which the applicantis engaged may be international trade with other countries or domestic trade.The application of this rule requires a clear understanding of the distinctionsin business entities described below.

b. To measure the requisite trade, you should look tothe trade conducted by the legal “person” who is the treatytrader. Such a trader might be an individual, a partnership, a joint venture,a corporation (whether a parent or subsidiary corporation), etc. A branch isnot a separate legal person but, rather, is part of another entity. Tomeasure trade in the case of a branch, you must look to the trade conducted bythe entire entity of which it is a part, usually a foreign-based business(individual, corporation, etc.). In contrast, a subsidiary is a separate legalperson/entity.

c. If the trader, whether foreign-based or U.S.-based,meets this 50 percent requirement, the duties of an employee need not besimilarly apportioned to qualify for an E-1 visa. For an example, if a U.S.subsidiary of a foreign firm is engaged principally in trade between the UnitedStates and the treaty country, it is not material that the E-1 employee is alsoengaged in third-country or intra-U.S. trade or that the parent firm’sheadquarters abroad is engaged primarily in trade with other countries. Asnoted above, this would not be true in the case of a branch of a foreign firm.

9 FAM 402.9-5(E) E-1Classification for Taipei Economic and Cultural Representative Office (TECRO)Employees

(CT:VISA-1; 11-18-2015)

See 9 FAM402.3-5(I). Also, see the Visa Reciprocity and Country Documents Finder,Taiwan.

9 FAM 402.9-6 Requirements forE-2 Treaty Investor Visas

9 FAM 402.9-6(A) Evaluating E-2Treaty Investor Applications

(CT:VISA-1641; 10-18-2022)

a. In adjudicating E-2 visa applications, you mustdetermine whether the:

(1) Requisite treaty exists (see 9 FAM 402.9-4(A) above and 9 FAM 402.9-10 below);

(2) Individual and/or business possess the nationalityof the treaty country (see 9FAM 402.9-4(B) above);

(3) Applicant has invested or is actively in theprocess of investing (see 9FAM 402.9-6(B) below);

(4) Enterprise is a real and operating commercialenterprise (see 9 FAM 402.9-6(C) below);

(5) Applicant's investment is substantial (see 9 FAM 402.9-6(D) below);

(6) Enterprise is more than a marginal one solely forearning a living (see 9 FAM402.9-6(E) below);

(7) Applicant is in a position to "develop anddirect" the enterprise - (see 9 FAM 402.9-6(F) below);

(8) Applicant is destined to an executive/supervisoryposition or possesses skills essential to the firm's operations in the UnitedStates (see 9 FAM 402.9-7(B)and 9 FAM 402.9-7(C) below); and

(9) Applicant intends to depart the United States whenthe E-2 status terminates (see 9FAM 402.9-4(C) above).

b. E-2 investor applicants and E-2 derivatives do notneed to submit a Form DS-156-E. All E-2 essential employees and managers arerequired to submit a Form DS-156-E, together with the Form DS-160. The Form DS-156-Emust be scanned into each applicant's record.

9 FAM 402.9-6(B) E-2 ApplicantMust Have Invested or Be in Process of Investing

(CT:VISA-1765; 05-01-2023)

a. Concept of “Investment”and “In Process of Investing”: You must assess the natureof the investment transaction to determine whether a financial arrangement maybe considered an “investment” within the meaning of INA101(a)(15)(E)(ii). The core factors relevant to your analysis of whether theapplicant has invested or is in the process of investing in an enterprise arediscussed below.

b. Source, Possession, and Control ofFunds: The source of the investment may include capital assets or fundsfrom savings, gifts, inheritance, contest winnings, loans collateralized by theapplicant’s own personal assets (see paragraph c below) or otherlegitimate sources. The source of the funds need not be outside the UnitedStates. The source of the investment must not, however, be the result ofillicit activities. You may request whatever documentation is needed toproperly assess the source of the funds. The applicant must demonstratepossession and control of the invested capital assets and funds. Inheritanceof a business itself does not constitute an investment.

c. Investment Connotes Risk:The concept of investment connotes the placing of funds or other capital assetsat risk, in the commercial sense, in the hope of generating a financialreturn. E-2 investor status must not, therefore, be extended to non-profitorganizations. See 9 FAM402.9-6(C) below. If the funds arenot subject to partial or total loss if business fortunes reverse, then it isnot an “investment” in the sense intended by INA101(a)(15)(E)(ii). If the funds’ availability arises from indebtedness,these criteria must be followed:

(1) Indebtedness such as mortgage debt or commercialloans secured by the assets of the enterprise cannot count toward theinvestment, as there is no requisite element of risk. For example, if thebusiness in which the applicant is investing is used as collateral, funds fromthe resulting loan or mortgage are not at risk, even if some personal assetsare also used as collateral.

(2) Only indebtedness collateralized by the applicant’sown personal assets, such as a second mortgage on a home or unsecured loan,such as a loan on the applicant’s personal signature may be included,since the applicant risks the funds in the event of business failure.

d. Funds Must be Irrevocably Committed:To be “in the process of investing” for E-2 purposes, thefunds or assets to be invested must be committed to the investment, and thecommitment must be real and irrevocable. The purchase of a business that isconditioned upon the issuance of the E-2 visa may still qualify as anirrevocable investment. Despite the condition, the purchase would constitute asolid commitment if the assets to be used are held in escrow for release ortransfer once the condition is met. The point of the example is that to be inthe process of investing, the investor must have entered into an agreement andhave committed funds.

e. Moreover, for the applicant to be “in theprocess of investing”, the applicant must be close to the start of actualbusiness operations, not simply in the stage of signing contracts (which may bebroken) or scouting for suitable locations and property. Mere intent toinvest, or possession of uncommitted funds in a bank account, or evenprospective investment arrangements entailing no present commitment, will notsuffice.

f. Payments for Leases or Rents asInvestments: Payments in the form of leases or rents for property orequipment may be calculated toward the investment in an amount limited to thefunds devoted to that item in any one month. However, the market value of theleased equipment is not representative of the investment, and neither is theannual rental cost (unless it has been paid in advance) as these rents aregenerally paid from the current earnings of the business.

g. Value of Goods or Equipment asInvestment: The amount spent for purchase of equipment and forinventory on hand may be calculated in the investment total. The value ofgoods or equipment transferred to the United States (such as factory machineryshipped to the United States to start or enlarge a plant) may be considered aninvestment. However, the applicant must demonstrate that the goods ormachinery will be or are currently being used in an ongoing commercialenterprise. The applicant must establish that the purchased goods or equipmentare for investment and not personal purposes.

h. Intangible Property: Rightsto intangible or intellectual property may also be considered capital assets tothe extent to which their value can reasonably be determined. Where no marketvalue is available for a copyright or patent, the value of current publishingor manufacturing contracts generated by the asset may be used. If none exist,the applicant may submit opinions regarding market value from experts in the fieldin question for consideration.

9 FAM 402.9-6(C) CommercialEnterprise Must Be Real and Active

(CT:VISA-1523; 04-01-2022)

The enterprise must be a real and active commercial orentrepreneurial undertaking, producing some service or commodity. If the investmentrelates to a new enterprise, then you must be convinced that it will be a realand active commercial or entrepreneurial undertaking that will produce someservice or commodity if the visa is issued. It cannot be a paper organizationor an idle speculative investment held for potential appreciation in value,such as undeveloped land or stocks held by an investor without the intent todirect the enterprise. The investment must be a commercial enterprise; it mustbe for profit, eliminating non-profit organizations from consideration.

9 FAM 402.9-6(D) InvestmentMust Be Substantial

(CT:VISA-1765; 05-01-2023)

a. General: The purpose of therequirement is to ensure to a reasonable extent that the business invested inis not speculative but is, or soon will be, a successful enterprise. The rulesregarding the amount of funds committed to the commercial enterprise and thecharacter of the funds, primarily personal funds or loans based on personalcollateral, are intended to weed out risky undertakings and ensure that theinvestor is unquestionably committed to the success of the business.Consequently, you must view the proportionate amount of funds invested, asevidenced by the proportionality test, considering the nature of the businessand the projected success of the business. Onceyou determine that an applicant has invested a substantial sum, the applicantgenerally does not need to be evaluated under this criterion again unless therehas been a change in ownership usually through a business acquisition.Business acquisitions normally occur when Company A buys most or all of the sharesin Company B to assume control of its assets and operations and potentiallyleads to a consolidation or merger.

b. Interpretations of“Substantial”: No set dollar figure constitutes a minimumamount of investment to be considered "substantial" for E-2 visapurposes. Investment of a substantial amount of capital for E-2 visa purposesconstitutes an amount that is:

(1) Substantial in a proportional sense, as determinedthrough the application of the proportionality test outlined below;

(2) Sufficient to ensure the treaty investor'sfinancial commitment to the successful operation of the enterprise; and

(3) Of a magnitude to support the likelihood that thetreaty investor will successfully develop and direct the enterprise.

c. Proportionality Test: The proportionality test determines whether aninvestment is substantial by weighing the amount of qualifying funds investedagainst the cost of the business. If the two figures are the same, then theinvestor has invested 100 percent of the needed funds in the business; such aninvestment is substantial. Most cases involve lesser percentages. Theproportionality test can best be understood as a sort of inverted slidingscale. The lower the cost of the business the higher a percentage ofinvestment is required. On the other hand, a highly expensive business wouldrequire a lower percentage of qualifying investment. There are no bright linepercentages that exist for an investment to be considered substantial. Thus,investments constituting 100 percent of the total cost would normally qualifyfor a business requiring a startup cost of $100,000, for example. At the otherextreme, an investment of $10 million in a $100 million business may beconsidered substantial, based on the sheer magnitude of the investment itself.

(1) See 9 FAM 402.9-6(B) above for guidance regarding qualifying funds.

(2) The cost of an established business is generallyits purchase price, which is normally the fair market value.

(3) The cost of a newly created business is the actualcost needed to establish such a business to the point of being operational.The actual cost can usually be determined by combining the cost of the assetsthe investor has already purchased with the cost estimates for the procurementof additional assets needed to run the business. For example, cost may beestablished through invoices or contracts for substantial purchases ofequipment and inventory; appraisals of the market value of land, buildings,equipment, and machinery; accounting audits; and records submissions to variousgovernmental authorities.

(4) The value (cost) of the business is clearlydependent on the nature of the enterprise. Any manufacturing business, such asan automobile manufacturer, might easily cost many millions of dollars toeither purchase or establish and operate the business. At the extreme oppositepole, the cost to purchase an ongoing commercial enterprise or to establish aservice business, such as a consulting firm, may be relatively low. If all theother requirements for E-2 status are met as described in 9 FAM 402.9-6, the cost of thebusiness per se is not independently relevant or determinative of qualificationfor E-2 status.

d. Investor's Commitment: Youmay request whatever documentation is needed to properly assess the nature andextent of commitment to a business venture. Such evidence may include lettersfrom chambers of commerce or statistics from trade associations. Unverifiedand unaudited financial statements based exclusively on information supplied byan applicant normally are insufficient to establish the nature and status of anenterprise.

9 FAM 402.9-6(E) EnterpriseMust Be More Than Marginal

(CT:VISA-1523; 04-01-2022)

A marginal enterprise is an enterprise that does not havethe present or future capacity to generate enough income to provide more than aminimal living for the treaty investor and their family. An enterprise thatdoes not have the capacity to generate such income but that has a present orfuture capacity to make a significant economic contribution is not a marginalenterprise. The projected future capacity should generally be realizablewithin five years from the date the applicant commences normal businessactivity of the enterprise.

9 FAM 402.9-6(F) Applicant isin a Position to Develop and Direct the Enterprise

(CT:VISA-1641; 10-18-2022)

a. In all treaty investor cases, it must be shown thatnationals of a treaty country own at least 50 percent of an enterprise. Itmust also be shown, in accordance with INA 101(a)(15)(E)(ii), that a national(or nationals) of the treaty country, through ownership or by other means,develops and directs the activities of the enterprise. The type of enterprisebeing sought will determine how this requirement is applied.

b. Controlling Interest: Anequal share of the investment in a joint venture or an equal partnership of twoparties, generally gives controlling interest, if the joint venture and partnereach retain full management rights and responsibilities. This arrangement isoften called "Negative Control." With each of the two partiespossessing equal responsibilities, they each have the capacity of makingdecisions that are binding on the other party. The Department of State hasdetermined, however, that an equal partnership with more than two partnerswould not give any of the parties control based on ownership, as the element ofcontrol would be too remote even under the negative control theory.

c. Owner to Demonstrate Developmentand Direction of Enterprise: In instances in which a sole proprietor oran individual who is a majority owner wishes to enter the United States as an"investor," or send an employee to the United States as his and/orher personal employee, or as an employee of the U.S. enterprise, the owner mustdemonstrate that they personally develop and direct the enterprise. Likewise,if a foreign corporation owns at least 50 percent of a U.S. enterprise andwishes for its employee to enter the United States as an employee of the parentcorporation or as an employee of the U.S. business, the foreign corporationmust demonstrate it develops and directs the U.S. enterprise.

d. Visa Holder to be Employee of U.S.Enterprise: In instances in which treaty country ownership may be toodiffuse to permit one individual or company to demonstrate the ability todirect and develop the U.S. enterprise, the owners of treaty countrynationality must:

(1) Show that together they own 50 percent of the U.S.enterprise; and

(2) Demonstrate, that at least collectively, they havethe ability to develop and direct the U.S. enterprise.

e. In these cases, an owner may not receive an 'E' visaas the "investor," nor may an employee be an employee of an owner for'E' visa purposes. Rather, all 'E' visa recipients must be shown to be anemployee of the U.S. enterprise coming to the United States to fulfill theduties of an executive, supervisor, or essentially skilled employee.

f. Control by Management: Asindicated, a joint venture or an equal partnership involving two parties, couldconstitute control for E-2 purposes. However, modern business practicesconstantly introduce new business structures. Thus, it is difficult to listall the qualifying structures. If an investor (individual or business) hascontrol of the business through managerial control, the requirement is met.The owner will have to satisfy you that the investor is developing anddirecting the business.

9 FAM 402.9-6(G) TheWalsh/Pollard Case

(CT:VISA-1641; 10-18-2022)

a. This precedent decision by the Board of ImmigrationAppeals warrants separate discussion because it emphasizes established rulesand has led to some confusion and misinterpretation.

b. The thrust of the fact pattern involved thecontractual arrangement between a foreign entity and a U.S. business to provideservices.

(1) The foreign company promised to provide certainengineering design services which the U.S. business did not have the capacityto perform.

(2) The design services were specific project-orientedservices.

(3) The employees of the foreign company furnishedunder the contract were demonstrably highly qualified to provide the needed service.

(4) Pursuant to the contract, the foreign businesscreated a subsidiary in the U.S. to ensure fulfillment of the contract and toservice their employees. This subsidiary constituted their E-2 investment.

(5) The employees who came to the U.S. entity toperform these services on site came to fulfill certain responsibilitiespursuant to that very specific design project. They did not come to the UnitedStates to fill employee vacancies of the U.S. business. It is, therefore,irrelevant that the design activities could have been performed either at thefacility of the foreign entity abroad or in the United States at the job siteof the U.S. business.

c. This decision followed the Department's guidelines on E-2 visa classification. Theprominent elements are:

(1) When applying the substantiality test, one mustfocus on the nature of the business. Thus, as in this case, sometimes aninvestment of only a small amount of money might meet the requirement.

(2) The test of “develop and direct”applies only to the investor(s), not to the individual employees.

(3) The test of “essential skills” as setforth in 9 FAM 402.9-7(C) belowwon clear acceptance.

d. Job Shop: The greatest areaof confusion surrounding Walsh/Pollard initially concerned the issue of the“job shop.” A job shop usually involves the providing of workersneeded by an employer to perform pre-designated duties. The employer often hasposition descriptions prepared for such workers. The positions to be filled bythe workers are often positions which the employer cannot fill for a variety ofreasons, such as unavailability of that type of worker, cost of locally hiredworkers, etc. For example, a manufacturer needs 100 tool and die workers tomeet its production schedule. If they have only 50 on the rolls, they mightengage a job shopper to fill the other positions.

e. The fact pattern of this decision is not that of ajob shop, nor does it in any way facilitate the creation of job shops under theE-2 visa classification. It is a pattern in direct contrast to a job shop, inwhich a business creating a new model required design-engineering services thatthe business neither had the capacity to perform nor had any positions to fillin that regard. It is expectable, in such circ*mstances, that the businessmight contract with another to provide the needed design for the model. The“contracted design” is a project-oriented commodity as contrastedto the filling of employment positions. The fact that the designing entitymight prepare the design anywhere, even on the sites of contracting business,does not alter the nature of the transaction.

f. Since the distinction might be clouded in somecirc*mstances, you should exercise care in adjudicating such cases and nothesitate to submit any questionable cases for an AO.

9 FAM 402.9-7 Employee Entitledto E-1 or E-2 Visa

9 FAM 402.9-7(A) EmployerQualifications

(CT:VISA-1845; 10-05-2023)

To qualify to bring an employee into the United Statesunder INA 101(a)(15)(E) the following criteria must be met:

(1) Prospective employer must meet the nationalityrequirement, i.e., if an individual, the nationality of the treaty country or,if a corporation or other business organization, at least 50 percent of theownership must have the nationality of the treaty country (see 9 FAM 402.9-4(B) above).

(2) Employer and the employee must have the samenationality; and,

(3) Employer, if not residing outside the UnitedStates, must be maintaining “E” status in the United States.

9 FAM 402.9-7(B) Executive andSupervisory Employee Responsibility

(CT:VISA-569; 04-06-2018)

In evaluating the executive and/or supervisory element,you should consider the following factors:

(1) The title of the position to which the applicantis destined, its place in the firm’s organizational structure, the dutiesof the position, the degree to which the applicant will have ultimate controland responsibility for the firm’s overall operations or a major componentthereof, the number and skill levels of the employees the applicant willsupervise, the level of pay, and whether the applicant possesses qualifyingexecutive or supervisory experience;

(2) Whether the executive or supervisory element ofthe position is a principal and primary function and not an incidental orcollateral function. For example, if the position principally requiresmanagement skills or entails key supervisory responsibility for a large portionof a firm’s operations and only incidentally involves routine substantivestaff work, an E classification would generally be appropriate. Conversely, ifthe position chiefly involves routine work and secondarily entails supervisionof low-level employees, the position would not be termed executive orsupervisory; and

(3) The weight to be accorded a given factor, whichmay vary from case to case. For example, the position title of “vicepresident” or “manager” might be of use in assessing thesupervisory nature of a position if the applicant were coming to a majoroperation having numerous employees. However, if the applicant were coming toa small two-person office, such a title in and of itself would be of littlesignificance.

9 FAM 402.9-7(C) EssentialEmployees

(CT:VISA-1845; 10-05-2023)

a. The regulations provide E visa classification foremployees who have special qualifications that make the service to be renderedessential to the efficient operation of the enterprise. The employee must,therefore, possess specialized skills and, similarly, such skills must beneeded by the enterprise. The burden of proof to establish that the applicanthas special qualifications essential to the effectiveness of the firm’sUnited States operations falls on the company and the applicant.

b. The determination of whether an employee is an“essential employee” in this context requires the exercise ofjudgment. It cannot be decided by the mechanical application of a bright-linetest. By its very nature, essentiality must be assessed on the facts in eachcase.

c. Specialized Skills:

(1) Once the business has established the need for aspecific skillset, you must determine whether the skills are specialized. Ifso, the visa applicant must satisfy you that they possess these skills. Inassessing the specialized nature of the skills sought and whether the applicantpossesses these skills, consider the following:

(a) The experience and training necessary to achievesuch skill(s);

(b) The uniqueness of such skills;

(c) The availability of U.S. workers with such skills;

(d) The salary such special expertise can command;

(e) The degree of proven expertise of the applicant inthe area of specialization; and

(f) The function of the job to which the applicant isdestined.

(2) In some cases, ordinarily skilled workers canqualify as essential employees, and this almost always involves workers neededfor start-up or training purposes. A new business or an established businessexpanding into a new field in the United States might need employees who areordinarily skilled workers for a short time. Such employees derive theiressentiality from their familiarity with the overseas operations rather thanthe nature of their skills. The specialization of skills lies in the knowledgeof the peculiarities of the operation of the employer’s enterprise ratherthan in the rote skill held by the applicant.

(3) Previous Employment with E VisaFirm: Apart from an ordinarily skilled worker who is relying on their familiarity with the overseas operation toqualify as specialized knowledge, there is no requirement that an“essential” employee have any previous employment with theenterprise in question. The focus of essentiality is on the business needs forthe essential skills and of the applicant’s possession of such. Firmsmay need skills to operate their business, even though they don’t haveemployees with such skills currently on their employment rolls.

(4) You may request whatever documentation is neededto address the specialized nature of the skillset sought including requestingstatements from such sources as chambers of commerce, labor organizations,industry trade sources, or state employment services as to the unavailabilityof U.S. workers in the skill areas concerned.

d. Duration of Essentiality:The applicant bears the burden of establishing at the time of initialapplication and each subsequent application not only that they possess therequisite specialized skills but, also, the length of time that such skills willbe needed. Some skills may be essential for as long as the business isoperating. Others, however, may be necessary for a shorter time, such as instart-up cases, and it is reasonable that after a short time the enterprisewill be able to train American employees with the specialized skills needed tosuccessfully operate the enterprise. In assessing the claimed duration ofessentiality, consider the time needed to onboard the employee and time toperform the contemplated duties. What is highly specialized and unique todaymight not be in a few years. Although there is a broad spectrum between theextremes set forth below, you may draw some perspective on this issue fromthese examples:

(1) Long-term need - The employer may show a need forthe skill(s) on an on-going basis when the employee(s) will be engaged infunctions such as continuous development of product improvement, qualitycontrol, or provision of a service otherwise unavailable (as in Walsh &Pollard).

(2) Short-term need - The employer may need the skillsfor only a relatively short (e.g., one or two years) period when the purpose ofthe employee(s) relate(s) to start-up operations (of either the business or anew activity by the business) or to training and supervision of techniciansemployed in manufacturing, maintenance and repair functions.

9 FAM 402.9-7(D) E-Visa CompanyRegistration Programs/Databases

(CT:VISA-1845; 10-05-2023)

a. The utility and efficiency added to the adjudicationof cases for E visa applicants by a consular section that has an E-visa companyregistration program may prove useful for all consular sections that decide to createsuch a program. The use of a program/database that serves as a repository for registeredcompanies (those businesses that have previously been determined to meet E-visastandards on a prior E-visa application and who have been issued an E-visa forits principal investor or employee and who maintain valid registration with aU.S. Embassy or Consulate) that regularly or continuously employ E visaapplicants may be useful in the adjudication of future E visa applicants while thecompany employing the E visa applicant has not experienced any substantivechanges. Some basic information should be used in the formulation of the companyregistration program/database that would make officers more efficient in thefuture adjudication of applicants from the same company. Any trends may alsobe expressed in this database; however officers are encouraged to consider thebona fides of each applicant and not to use the presence or absence of a companyin a program/database as an endorsem*nt or disqualification of visaeligibility. Examples of information that should be used in the registrationprogram include company name, date of most recent review of companyregistration, number of U.S. staff, volume/number of trades between treatycountry and U.S.(E-1), amount of investment (E-2), operating/net income, nationalityof company, most recent adjudication date, adjudication decision on enterprise, etc.

b. To be in good standingas a company that is registered or seeking registration there usually must:

(1) be an employee that is in E status and/or who holdsvalid E visa;

(2) be a review ofthe registration every 5 years, at a minimum, to ensure that the employer/employeesare in the appropriate visa category or status and that the enterprise in the UnitedStates remains qualified (i.e. more than marginal, requisite nationality,substantial trade etc.) Consular sectionswith large E visa applicant pools may findit difficult to review the company's status every 5 years so a company's registration should not be terminatedsolely because no review has beenconducted within the past 5 years.

c. There is no minimum number of employees that mustbe in E status for a company to be accepted into a consular section's registrationprogram. Even consular sections that do not process a large number of E visaapplicants should consider creating a registration program to improveefficiency.

9 FAM 402.9-8 Requirements forE-3 Visas

9 FAM 402.9-8(A) Background

(CT:VISA-1765; 05-01-2023)

a. The E-3 visa classification ("treaty applicantin a specialty occupation") was the result of Public Law 109-13, entitled"The Emergency Supplemental Appropriations Act for Defense, the Global Waron Terror, and Tsunami Relief, 2005" (May 11, 2005). The new law addedparagraph (iii) to INA 101(a)(15)(E), establishing a visa classification forAustralians in specialty occupations.

b. The law allows for the temporary entry of Australianprofessionals to perform services in a “specialty occupation” for aUnited States employer. The temporary entry of nonimmigrants in specialtyoccupations is provided for at Section 501 of Public Law 109-13. The lawestablishes a new category of temporary entry for nonimmigrant professionals,the E-3 category. Unlike the current E-1 and E-2 visas, the E-3 visa is notlimited to employment that is directly related to international trade andinvestment. Subject to the requirements discussed herein, E-3 visa holders areeligible to work for any employer in the United States. Dependent spouses andchildren accompanying or following to join are also eligible for temporaryentry.

c. To qualify for an E-3 visa, an Australian must:

(1) Present a Labor Condition Application (LCA) certifiedby DOL;

(2) Demonstrate that the prospective employment meetsthe standard of being “specialty occupation employment” (see 9 FAM 402.9-8(E) below);

(3) Demonstrate the necessary academic and occupationalqualifications for the job have been met (see 9 FAM 402.9-8(H) below);

(4) Convince you that the proposed stay in the UnitedStates will be temporary (see 9FAM 402.9-4(C) above); and

(5) Provide evidence of a license or other officialpermission to practice in the specialty occupation if required as a conditionfor the employment sought (see 9FAM 402.9-8(H) below). In certaincases, where such license or other official permission is not requiredimmediately, an applicant must demonstrate that they will obtain such licensureor permission within a reasonable period following admission to the UnitedStates.

d. A maximum of 10,500 E-3 visas can be issuedannually.

9 FAM 402.9-8(B) What is Neededto Qualify for a Specialty Occupation Visa

(CT:VISA-1641; 10-18-2022)

Principals: A treaty applicant ina specialty occupation must meet the general academic and occupationalrequirements for the position pursuant to INA 214(i)(1). In addition to the NIVapplication, the following documentary evidence must be submitted in connectionwith an application for an E-3 visa:

(1) A completed Form ETA-9035E, Labor ConditionApplication for Nonimmigrant Workers (formerly, Labor Condition Application forH-1B Nonimmigrants), certified by DOL.

(2) Evidence of academic or other qualifyingcredentials as required under INA 214(i)(1) and a job offer letter or otherdocumentation from the employer establishing that upon entry into the UnitedStates the applicant will be engaged in qualifying work in a specialty occupationand that the applicant will be paid the actual or prevailing wage referred toin INA 212(t)(1). A certified copy of the foreign degree and evidence that itis equivalent to the required U.S. degree could be used to satisfy the“qualifying credentials” requirement. Likewise, a certified copyof a U.S. baccalaureate or higher degree, as required by the specialtyoccupation, would meet the minimum evidentiary standard.

(3) In the absence of an academic or other qualifyingcredential(s), evidence of education and experience that is equivalent to therequired U.S. degree.

(4) Evidence establishing that the applicant’sstay in the United States will be temporary. See 9 FAM 402.9-4(C) above and 9 FAM 402.9-8(G) below.

(5) A certified copy of any required license or otherofficial permission to practice the occupation in the state of intendedemployment if so required or, where licensure is not necessary to commenceimmediately the intended specialty occupation employment upon admission,evidence that the applicant will be obtaining the required license within areasonable time after admission.

(6) Evidence of payment of the Machine Readable Visa(MRV) fee.

9 FAM 402.9-8(C) Form ETA-9035Labor Condition Application (LCA) from the Department of Labor (DOL) Required

(CT:VISA-1845; 10-05-2023)

a. Filing Form ETA-9035E: Forall prospective E-3 hires, employers must submit a Labor Condition Application(LCA) to DOL containing attestations relating to wages and working conditions.

b. LCAs for E-3 cases must be submitted electronicallyvia the iCERT Portal System available at: http://icert.doleta.gov. The onlytwo exceptions for electronic filing are physical disability and lack ofinternet access preventing the employer from filing electronically. Employerswith physical disabilities or lack of internet access preventing them fromfiling electronic applications may submit a written request for specialpermission to file their LCAs via U.S. mail. Such requests MUST be made beforeapplying by mail and should be addressed to:

Administrator, Office of Foreign Labor Certification
Employment Training Administration
U.S. Department of Labor
Room C-4312
200 Constitution Avenue, NW
Washington, DC 20210

c. The Form ETA-9035 usedfor requests by mail and Form ETA-9035E used for electronic submissions are thesame form. The current ETA-9035/9035E is six to seven pages long. Page 1(numbered page 1 of 1) includes three attestations for the employer to completein the electronic filing system. Pages 2-6 (numbered page 1 of 5 through page5 of 5) contain Sections A through O, and the 7th page is optional for anyAddendum to Section G to list additional worksite details.

d. All E-3 LCAs will contain casenumbers in the following format: I-203-xxxxx-xxxxxx. All LCAs thatwere submitted online will display the case number, case status and period ofemployment on the bottom of each page. Section J on page 5 should contain thesignature of the employer. If there is no employer signature, the LCA is notvalid for processing, and you should refuse the case under 221(g) until asigned copy of the LCA has been submitted. In section M of the LCA, thesignature block will contain the validity dates of the certification, DOL’s signature as “CertifyingOfficer” (not a specific official's name), the determination date, thecase number, and the case status as “Certified.” A mailed LCAlikely would not have a computer-generated footer at the bottom of the formwith the case number, case status, and period of employment. A mailed-in LCAwould likely also be completed in a different computer font or containhandwritten information.

e. Acceptance of Form ETA-9035 by ConsularSections: For mailed-in applications, DOL faxes the LCA back to theemployer after approval. Applications approved online are presented on-screento the employer at the completion of the filing process in the form of aPDF/.pdf document. Consequently, the applicant will be presenting either theinitial faxed LCA, a printed PDF/.pdf document, or a copy of either of these;there will be no “original” document that will be presented. Youmust check to make sure the approval date of the LCA is later than September 2,2005 (the effective date of the Department'sE-3 regulatory publication).

f. Verifying Authenticity of the E-3LCA: Your acceptance of the LCA certification is discretionary. If youare not satisfied that the LCA being presented is authentic, you should suspendaction on the case (INA 221(g)) and verify the LCA with DOL.

g. DOL posts html versions of all certified E-3 LCAs onthe Labor Certification Registry website.For additional questions concerning the authenticity of a LCA, you should sendrequests to the LCA Help Desk at LCA.Chicago@dol.gov, or by mail to U.S.Department of Labor, Employment and Training Administration, Office of ForeignLabor Certification, Chicago National Processing Center, 11 West Quincy Court,Chicago, IL 60604-2105.

h. Petition Filing with DHS NotRequired: An employer of an E-3 treaty applicant in a specialtyoccupation is not required to file a petition with DHS. Instead, a prospectiveemployee will present evidence for classification, including the approved FormETA-9035E, to you at the time of visa application.

9 FAM 402.9-8(D) Definition ofSpecialty Occupation

(CT:VISA-1641; 10-18-2022)

The E-3 category provides for the issuance of visas solelyto E-3 qualifying nationals performing employment within a “specialtyoccupation.” The definition of “specialty occupation” is onethat requires:

(1) A theoretical and practical application of a bodyof specialized knowledge; and

(2) The attainment of a bachelor’s or higherdegree in the specific specialty (or its equivalent) as a minimum for entryinto the occupation in the United States. In determining whether an occupationqualifies as a "specialty occupation," follow the definitioncontained at INA 214(i)(1) for H-1B nonimmigrants and applicable standards andcriteria determined by DHS. See 9 FAM 402.10-5(E).

9 FAM 402.9-8(E) Determining“Specialty Occupation” Qualification

(CT:VISA-1641; 10-18-2022)

Although the term “specialty occupation” isspecifically defined at INA 214(i)(1), and further elaborated upon inDHS’s regulations (8 CFR 214.2(h)(4)(iii)(A)), consular determinations ofwhat qualifies as a “specialty occupation” will often come down to yourjudgment. You must determine whether the job itself falls within thedefinition of “specialty occupation,” and examine the applicant’squalifications, including their education and experience. You should considerthe available offer of employment and the information obtained during theinterview, and then based on this information, evaluate whether the offer ofemployment is for a “specialty occupation.” Then you mustdetermine whether the applicant has the required degree, or equivalency ofexperience and education, to adequately perform the stipulated job duties.

9 FAM 402.9-8(F) ReferringQuestionable Cases to Office of the Legal Adviser for Consular Affairs (L/CA)and/or the Kentucky Consular Center (KCC)

(CT:VISA-1641; 10-18-2022)

a. Seek Departmental guidance by submitting an AOrequest to L/CA when necessary to determine whether the E-3 applicant’swork experience, or proposed employment meets the specialty occupationrequirements as described above in 9 FAM 402.9-8(E) above.

b. If you have concerns about information regarding orprovided by the employer (e.g., you doubt that the employer can pay theprevailing wage, or you do not believe the business is large enough to supportadditional employees), email KCC at FPMKCC@state.gov with your concerns,providing as much factual detail as possible. KCC will review the information,investigate, and attempt to provide you with additional research to addressthose concerns.

9 FAM 402.9-8(G) Intent toDepart Upon Termination of Status

(CT:VISA-1845; 10-05-2023)

a. Temporary entry for treaty applicants in specialtyoccupations is the same standard used for treaty traders/investors.

b. An applicant for an E visa need not establish intentto proceed to the United States for a specific period, nor does an applicantfor an E visa need to have a residence in a foreign country which the applicantdoes not intend to abandon. The applicant may sell their residence and moveall household effects to the United States. An E visa applicant’sexpression of an unequivocal intent to depart the United States upontermination of E status is normally sufficient. An applicant who is thebeneficiary of an IV petition will need to satisfy you that their intent is to depart the United States atthe end of their authorized stay and notstay in the United States to adjust status or otherwise remain in the UnitedStates.

c. An E visa applicant is presumed to be an immigrantuntil the applicant establishes to your satisfaction that they are entitled toE nonimmigrant status. The standards for applying INA 214(b) described in 9 FAM 302.1-2(B) apply to E visa applicants.

9 FAM 402.9-8(H) E-3 LicensingRequirements

(CT:VISA-1641; 10-18-2022)

a. An E-3 applicant must meet academic and occupationalrequirements, including licensure where appropriate, for admission into theUnited States in a specialty occupation. If the job requires licensure orother official permission to perform the specialty occupation, the applicantmust submit proof of the requisite license or permission before the E-3 visamay be issued. In certain cases, where such a license or other officialpermission is not immediately required to perform the duties described in thevisa application, the applicant must show that they will obtain such licensurewithin a reasonable period following admission to the United States. However,as illustrated in the example in paragraph b(4) below, in other instances, an applicantwill be required to present proof of actual licensure or permission to practicebefore visa issuance. In all cases, an applicant must show that they meet theminimum eligibility requirements to obtain such licensure or sit for suchlicensure examination (e.g., the applicant must have the requisite degreeand/or experience). Even when not required to engage in the employmentspecified in the visa application, a visa applicant may provide proof of licensureto practice a given profession in the United States together with a job offerletter, or other documentation, in support of an application for an E-3 visa.

b. The following examples areillustrative:

(1) An applicant is seeking an E-3 visa to work as alaw clerk at a U.S.-based law firm. The applicant may, if otherwise eligible,be granted an E-3 visa if it can be shown that the position of unlicensed lawclerk is a specialty occupation, even if they have not been admitted to thebar.

(2) An applicant has a job offer from a law firmpromising them a position as an associate if the applicant passes the barexam. The application indicates that the position in question meets thedefinition of a specialty occupation. The applicant may apply for an E-3 visaeven if they will not be immediately employed in the position offered but willbe studying for the bar examination upon admission to the United States. Youmay issue the visa if you are satisfied that the applicant will be taking stepsto obtain bar admission within a reasonable period following admission to theUnited States. What constitutes a reasonable period will depend on thespecific facts presented, such as licensure examination schedules and barpreparation course schedules.

(3) An applicant does not have a job offer but wishesto study for the bar upon admission to the United States with the hope offinding a position at a United States-based law firm. The applicant would notbe eligible for E-3 classification since they would not be coming to work in aspecialty occupation. This person would be required to obtain another type ofvisa, such as a B-1, to study for the bar in this country.

(4) An applicant has an offer for employment with alaw firm as a litigator and is to begin working within two weeks of entry intothe United States. The applicant must demonstrate that they have been admittedto the appropriate bar, or otherwise has obtained permission from therespective jurisdiction or jurisdictions where they intend to practice and makecourt appearances.

9 FAM 402.9-8(I) NumericalLimitation on E-3 Visas

(CT:VISA-1845; 10-05-2023)

a. Only E-3 principals who are being issued E-3 visasfor the first time, or who are otherwise obtaining E-3 status (in the UnitedStates) for the first time, are subject to the 10,500 annual numericallimitation provisions of INA 214(g)(11)(B). Consequently, spouses and childrenof E-3 principals, as well as returning E-3 principals who are being issued newE-3 visas for continuing employment with the original employer, are exempt fromthe annual numerical limit (see b. and c. immediately below).

b. An E-3 principal who is applying for a new visafollowing the expiration of the initial E-3 visa, or who is applying for a visaafter initially obtaining E-3 status in the United States, is not subject tothe annual E-3 numerical limit, if it isestablished to your satisfaction that there has been uninterrupted continuityof employment. “Uninterrupted continuity of employment” means thatthe applicant has worked, and continues to work, for the U.S.-based employerwho submitted the original Labor Condition Application (LCA) and offer ofemployment. To ensure that such applicants are not counted against anysubsequent numerical limit, returning E-3 principals will be identified by thevisa code “E-3R” (with “R” representing the status of“returning”).

c. To ensure that the spouse and children of E-3principals are not counted against the numerical limit, they will be identifiedby the visa code “E-3D” (with “D” representing thestatus of “dependent”).

d. At the end of each fiscal year, any unused E-3numbers are forfeited; such visa numbers do not carry over to the next fiscalyear.

e. The Department will keep count of the number of E-3visas issued, and of changes of status to E-3 in the United States as reportedby DHS. If it appears that the 10,500 annual numerical limit will be reachedin any fiscal year, the Department will instruct consular sections to cease E-3issuances for that fiscal year.

9 FAM 402.9-8(J) Part-TimeEmployment by E-3 Applicants

(CT:VISA-569; 04-06-2018)

An E-3 worker may work full or part-time and remain instatus based upon the attestations made on the LCA. Section B.4 on the LCAprovides the option to request part-time employment and DOL approves LCAs forpart-time employment. You will need to evaluate potential public chargeconcerns for any E-3 applicant planning on coming to the United States as apart-time employee.

9 FAM 402.9-8(K) Applicantswith Multiple LCAs

(CT:VISA-1297; 06-04-2021)

a. If an applicant presents more than one valid LCA, youshould evaluate each LCA on its own merits. The applicant will have to qualifyfor each LCA separately, and each proposed employment situation must overcomepublic charge concerns on its own. Clearly indicate in the case remarks whichLCAs and positions the applicant qualifies for.

b. Multiple annotations: Youshould annotate the visa with the employer's name, LCA case number and LCA's expirationdate for each employer. You may need to use abbreviations to make more thanone set of annotations fit onto the visa foil. If there is not enough room onthe visa foils to add all the required annotations, contact VO/F for additionalguidance regarding the possibility of providing a letter for employers.

c. If an applicant presents multiple LCAs for E-3 andE-3R (returning E-3) positions at the same time, and is approved for multiplepositions, only one visa should be issued. The visa should be issued for anE-3 position to ensure that the visa is counted towards the annual numericallimit. The visa should be annotated with the employer's name, LCA case numberand LCA's expiration date for each E-3 position AND the employer's name, LCAcase number and LCA's expiration date for each E-3R position. If there is notenough room on the visa foils to add all the required annotations, contact VO/Ffor additional guidance.

9 FAM 402.9-8(L) Considerationsin Processing E-3 Visas

(CT:VISA-1845; 10-05-2023)

a. Validity of Issued Visa:The validity of the visa should not exceed the validity period of the LCA. TheDepartment and DHS have agreed to a 24-month maximum validity period for E-3visas.

b. Initial Authorized Period of Stayfor E-3 Applicants: E-3 applicants are admitted for a two-year periodrenewable indefinitely, if the applicant candemonstrate that they do not intend to remain or work permanently in the UnitedStates.

c. Fees: Other than thenormal visa-related Machine Readable Visa (MRV) fees, there is no other feeassociated with the issuance of an E-3 visa.

d. Reports of Cancelled or Revoked E-3Visas: In the event an E-3 visa is cancelled or revoked before theapplicant’s entry into the United States, a report must be sent toCA/VO/DO/I explaining the circ*mstances attendant to the non-use of the E-3number. In cases where the E-3 number has not been used, it will be added backinto the remaining pool of unused E-3 visa numbers for that fiscal year.

e. Annotation of E-3 Visas:Annotate E-3 visas of the principal applicant with the name of the employer,the ETA case number (found at the bottom of each page of the Form ETA-9035),and the LCA’s expiration date. Annotate E-3D visas for derivatives ofthe principal applicant with the name of the principal applicant, the name ofthe employer, the ETA case number and the LCA's expiration date.

9 FAM 402.9-8(M) Special Noteabout E-3 and H-1B Petitions

(CT:VISA-1523; 04-01-2022)

When the H-1B numerical limit is reached before the end ofthe fiscal year, it is likely that there will be numerous Australian H-1Bapplicants who will have approved Labor Condition Applications (LCA) but whosepetitions for H-1B status are returned unapproved by the DHS for lack of anavailable H-1B visa number. Currently, you are not permitted to accept LCAsapproved based upon H-1B-related offers of employment for E-3 applications.Rather, the United States employer must submit a new LCA request to DOL andreceive a separate E-3-based LCA approval for any employee possessing apreviously approved H-1B-based LCA.

9 FAM 402.9-9 Spouse and Childrenof E Visa Applicants

(CT:VISA-1765; 05-01-2023)

a. Entitled to Derivative Status:The spouse and children of an E visa applicant who are accompanying orfollowing to join the principal E visa applicant are entitled to derivativestatus in the same classification as the principal. The nationality of thespouse and children of an E visa principal may not be material - see guidancebelow on derivatives of treaty countries and non-treaty countries. Likeprincipal E visa applicants, the spouse and children are also subject to INA214(b). To establish qualification for E classification as the spouse or childof an E principal applicant, you may accept whatever reasonable evidence ispersuasive to establish the required qualifying relationship. The presentationof a certified copy of a marriage or birth certificate is not mandatory if youare otherwise satisfied that the necessary relationship exists.

(1) Derivatives of treaty countries:The spouse and/or children of an E visa principal who possess thenationality of a treaty country should be issued visas valid for the maximumvalidity authorized by the reciprocity schedule of the derivative applicant'snationality, or for the length of the principal's visa and/or authorized stay,whichever is less. The reciprocity fees are also governed by the reciprocityschedule for fees of the derivative's nationality.

(2) Derivatives of non-treatycountries: Non-treaty country spouses and children are also entitled toderivative classification and may have their visas issued in the non-treatycountry passport. However, since only treaty country reciprocity schedulesprovide data for E visas, the number of entries, fees and validity fornon-treaty country applicants must be based on the reciprocity schedule of theprincipal applicant.

b. Spouse and Children of E-3 ApplicantsNot Subject to Numerical Limitation: The spouse and children of E-3principals are classifiable as E-3s, using the visa code E-3D. They are notcounted against the 10,500 annual numerical limitation described at INA214(g)(11)(B).

c. Employment by Spouse of E Visa Applicants:INA 214(e)(6) permits the spouse (but not dependent children) of aprincipal E-3 nonimmigrant to engage in employment in the United States. Thespouse may, upon admission to the United States, apply with the DHS for anemployment authorization document, which an employer could use to verify thespouse’s employment eligibility. Such spousal employment may be in aposition other than a specialty occupation.

d. USCIS and CBP have begun to distinguish between spousesof E nonimmigrants as derivatives spouses authorized to seek employment anddependent children that are not. To implement this change, both USCIS and CBP willissue Form I-94 to the spouses to indicate that they are eligible to seekemployment with the following admission codes: spouse of treaty traders (E-1S),spouse of treaty investors (E-2S), and spouse of Australians working in aspecialty occupation (E-3S). These admission codes will differ from theclassification codes in NIV and 9FAM 402.9-3 above. Additionally, USCISand CBP will implement the following admission codes for dependent childrenthat are not authorized to be employed: dependent children of a treaty traders(E-1Y), dependent children of treaty investors (E-2Y), and dependent childrenof Australians working in a specialty occupation (E-3Y). Classificationdesignations for principal Es will remain unchanged.

e. Annotation of the visa for Ederivatives: The name of the principal applicant and the relationshipbetween the principal and visa holder should appear in the annotation field ofthe visa for each family member that is a derivative. You should also includethe name of the company/enterprise, petition number and expiration date or the visaexpiration date of the principal depending on whether the principal applied fora visa or changed status. For example:

Spouse of (or Child of): P.A.: JOHN DOE

Company's Name: ABC Professor

Principal's PET #: EAC2020202020 and EXP. DATE: 04 MAY2023 or

Visa expiration date: 04 May 2023

9 FAM 402.9-10 Treaties and LawsContaining Trader and Investor Provisions in Effect between the United Statesand Other Countries

(CT:VISA-1641; 10-18-2022)

FOOTNOTES

1China (Taiwan). Pursuantto Section 6 of the Taiwan Relations Act, Public Law 96-8, 93 Stat, 14, thisagreement, which was concluded with the Taiwan authorities before January 1,1979, is administered on a nongovernmental basis by the American Institute inTaiwan, a nonprofit District of Columbia corporation, and constitutes neitherrecognition of the Taiwan authorities nor the continuation of any officialrelationship with Taiwan.

2Czech Republic and SlovakRepublic. The Treaty with the Czech and Slovak Federal Republics entered intoforce on December 19, 1992; it entered into force for the Czech Republic andSlovak Republic as separate states on January 1, 1993.

3Denmark. The Conventionof 1826 does not apply to the Faroe Islands of Greenland. The Treaty, whichentered into force on July 30, 1961, does not apply to Greenland.

4France. The Treaty, whichentered into force on December 21, 1960, applies to the departments ofMartinique, Guadeloupe, French Guiana, and Reunion.

5Japan. The Treaty, whichentered into force on October 30, 1953, was made applicable to the BoninIslands on June 26, 1968, and to the Ryukyu Islands on May 15, 1972.

6Netherlands. The Treaty,which entered into force on December 5, 1957, is applicable to Aruba andNetherlands Antilles.

7Norway. The Treaty, whichentered into force on September 13, 1932, does not apply to Svalbard(Spitzbergen and certain lesser islands).

8Spain. The Treaty, whichentered into force on April 14, 1903, is applicable to all territories.

9Suriname. The Treaty withthe Netherlands, which entered into force December 5, 1957, was made applicableto Suriname on February 10, 1963.

10United Kingdom. TheConvention, which entered into force on July 3, 1815, applies only to Britishterritory in Europe (the British Isles (except the Republic of Ireland), theChannel Islands, and Gibraltar) and to "inhabitants" of suchterritory. This term, as used in the Convention, means "one who residesactually and permanently in a given place, and has his domicile there."Also, to qualify for treaty trader or treaty investor status under this treaty,the applicant must be a national of the United Kingdom. Individuals having thenationality of members of the Commonwealth other than the United Kingdom do notqualify for treaty trader or treaty investor status under this treaty.

11Yugoslavia. The U.S.view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolvedand that the successors that formerly made up the SFRY - Bosnia and Herzegovina,Croatia, Kosovo, the Former Yugoslav Republic of Macedonia, Montenegro, Serbia,and Slovenia, continue to be bound by the treaty in force with the SFRY and thetime of dissolution.

12The E-3 visa is fornationals of the Commonwealth of Australia who wish to enter the United Statesto perform services in a "specialty occupation." The term"specialty occupation" means an occupation that requires theoreticaland practical application of a body of highly specialized knowledge, andattainment of a bachelor's or higher degree in the specific specialty (or itsequivalent) as a minimum for entry into the occupation in the United States.The definition is the same as the Immigration and Nationality Act definition ofan H-1B specialty occupation.

13Bolivia. Boliviannationals with qualifying investments in place in the United States by June 10,2012 continue to be entitled to E-2 classification until June 10, 2022. Theonly nationals of Bolivia (other thanthose qualifying for derivative status based on a familial relationship to anE-2 principal applicant) who may qualify for E-2 visas at this time are thoseapplicants who are coming to the United States to engage in E-2 activity infurtherance of covered investments established or acquired before June 10,2012.

14Ecuadoriannationals with qualifying investments in place in the United States byMay 18, 2018 continue to be entitled to E-2 classification until May 18, 2028. Theonly nationals of Ecuador (other than those qualifying for derivative status basedon a familial relationship to an E-2 principal applicant) who may qualify forE-2 visas at this time are those applicants who are coming to the United Statesto engage in E-2 activity in furtherance of covered investments established oracquired before May 18, 2018.

15 Israel: Pursuant to atreaty of friendship, commerce, and navigation between the United States andIsrael that entered into force on April 3, 1954 entitled nationals of Israel toE-1 status for treaty trader purposes. Nationals of Israel are not entitled toE-2 classification for treaty investor purposes under that treaty. Public Law112-130 (June 8, 2012), accords nationals of Israel E-2 status for treatyinvestor purposes if the Government of Israel provides similar nonimmigrant statusto nationals of the United States. The Department has confirmed that Israeloffers reciprocal treaty investor treatment to U.S. nationals and E-2 visa maybe issued to nationals of Israel beginning on May 1, 2019.

16 New Zealand: Public Law115-226, enacted on August 1, 2018, accorded nationals of New Zealand to E-1and E-2 status for treaty trader/treaty investor purposes if the Government ofNew Zealand provides similar nonimmigrant status to nationals of the UnitedStates. The Department has confirmed that New Zealand offers similarnonimmigrant status to U.S. nationals and E visas may be issued to nationals ofNew Zealand beginning on June 10, 2019.

9 FAM 402.9-11 submitting anapplication for an e-1 or E-2 visa

9 FAM 402.9-11(A) ApplicationForms

(CT:VISA-1523; 04-01-2022)

All E-1/E-2 visa applicants must submit a completed Form DS-160.All E-1/ E-2 non-derivative visa applicants must also submit the Form DS-156-E,except the E-2 principal investor (DS-156-E questions for E-2 investor principalsare integrated into their Form DS-160). The Form DS-156-E must be scanned intothe applicant's record. Derivatives do not need to submit Form DS-156-E.

9 FAM 402.9-11(B) SuggestedE-1/E-2 Visa Application Document Checklist - for Applicants

(CT:VISA-1845; 10-05-2023)

The following is a list of suggested documentation thatmay establish an applicant’s eligibility for an E-1 or E-2 visa. This ismeant as a guide only and is not a list of required documentation. Otherinformation and evidence may be submitted by the visa applicant to satisfy youthat the applicant meets the criteria described in 9 FAM 402.9-5(A) or 9 FAM 402.9-6(A) above.

Please tab and index your supporting documentationand note the corresponding tab number on this form. To facilitate and expediteadjudication of your case, please highlight corroborating figures in annualreports, financial statements, etc.

I. Proof of Nationality of Investoror Applicant

II. Ownership Documents: (either A, B orC)

III. Trade:

IV. Investment:

V. Marginality:

VI. Real & Operating CommercialEnterprise:

VII. Executive/Managerial/Supervisory/EssentialSkills:

UNCLASSIFIED (U)