Effective May 1, 2019, E-1 Treaty Trader and E-2 Treaty Investor visa categories will become available for Israeli nationals.  After completing negotiations over several years, the U.S. and Israel have agreed to program specifics for implementing legislation signed by President Obama in June 2012.  Israeli traders and investors will now be able to apply for E-Visa status to further trade, commerce, and investment in the U.S., and U.S. citizens will be able to apply for visas to do the same in Israel.  Unlike H-1B visas, there is no annual quota for E-visas, making them available at any time of the year. The availability of E-visas, therefore, increases opportunities for Israeli nationals to become eligible to work in the U.S.

E-1 Treaty Trader Visa Category

The E-1 visa allows a national of a country with which the U.S. maintains a treaty of commerce and navigation to be admitted into the U.S. solely to engage in international trade on his or her own behalf.  Certain employees of a Treaty Trader or of a qualifying organization, along with the spouse and child(ren) under 21 of a Treaty Trader or of his/her employee, may also be eligible for an E-1 visa.To qualify for an E-1 visa, a Treaty Trader must:

1. Be a national of the country with which the U.S. maintains a treaty of commerce and navigation.
2. Carry on substantial trade (this means continuous flow of sizable international trade items, involving numerous transactions over time; while monetary value is an important factor, greater weight is given to numerous exchanges of greater value).
3. Carry on principal trade between the U.S. and the treaty country which qualify the Treaty Trader for the E-1 classification (this means over 50% of the total volume of international trade must be between the U.S. and the trader’s treaty country).
   If seeking an E-1 visa, an employee of a Treaty Trader, or of a qualifying organization (this means an enterprise or organization at least 50% owned by persons in the U.S. who have the nationality of the treaty country and are either maintaining E-visa status in the U.S., or, if the owners are not in the U.S., are classifiable for E-visa status), must:

1. Be the same nationality of the principal alien employer (who must have the nationality of the treaty country);
2. Meet the definition of “employee” under relevant law; and
3. Engage in executive or supervisory duties, or be an employee with special qualifications that include, but are not limited to:  a degree of proven expertise in an area of operations; specific skills not possessed by others or readily available in the U.S.; or ability to command a significant salary based on the special qualifications.  Knowledge of a foreign language/culture is not in itself a special qualification for an E-1 employee.

E-2 Treaty Investor Visa

The E-2 visa allows a national of a country with which the U.S. maintains a treaty of commerce and navigation to be admitted to the U.S. for a temporary period if s/he invests a substantial amount of capital in a U.S. business.  As with E-1 visas, certain employees of a Treaty Investor, or of a qualifying organization, along with the spouse and child(ren) under 21 of a Treaty Investor or his/her employees, may also be eligible for an E-2 visa. To qualify for an E-2 visa, a Treaty Investor must:

1. Have a substantial amount of capital (this means substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; enough to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise).
2. Have invested the capital, or be actively in the process of investing, in a bona fide enterprise in the U.S. (this means a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit). 
3. Not invest in a marginal enterprise (this means an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family).
4. Be seeking to enter the U.S. solely to develop and direct the investment enterprise.  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An employee of a Treaty Investor, or of a qualifying organization as defined above, must meet the same three requirements outlined for an employee applying for an E-1 visa.

The E-Visa Application Process

Companies seeking E-visas on behalf of owners and executives/managers, or of employees with special qualifications, must apply at the U.S. Embassy’s Branch Office in Tel Aviv via mail, and establish through evidence that the trading enterprise or investment meets the requirements set forth above.  An individual applying for an E-1 visa must be a national or a resident of Israel, and Israeli citizens will be eligible to apply for an E-2 visa. 

The U.S. Embassy in Israel will have a dedicated E-visa Unit to review all applications and schedule mandatory in-person interviews for the company/employee.  The preliminary review of company files should take from 2-3 weeks and will be executed on a first-come first-served basis.  Having an interview scheduled is not an assurance that an E-visa application for a company will be approved/an E-visa for an individual will be issued.

If the United States Citizenship and Immigration Services (“USCIS”) authorizes a Change of Status to E-Visa for an Israeli national/citizen already in the U.S. pursuant to a different visa status, the individual may utilize the E-visa while on U.S. soil only.  If such individual leaves the U.S., then the related company and applicant must submit a complete E-visa application by mail to the U.S. Embassy in Israel and obtain approved E-visa status through the Embassy in order for the individual to re-enter the U.S. in E-visa status.

Additional details about the E-visa application/petition process and a full list of E-visa eligible treaty countries are available at the following U.S. government website links: 

• https://my.uscis.gov/exploremyoptions/evisas_for_temporary_workers
• https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

Associate Catherine Baiocchi & Immigration Intern Shehrezad Haroon contributed to this alert.