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E1,E2,E3

The E1 and E2 nonimmigrant visa categories are comprised of treaty traders and treaty investors entitled to be in the United States under a bilateral treaty of commerce and navigation between the United States and the country of which the treaty trader or investor is a citizen or national.

The purpose of a treaty trader is to carry on substantial trade in goods, services and technology, principally between the United States and the foreign country of which s/he is a citizen or national.

The purpose of a treaty investor is to direct the operations of an enterprise in which s/he has invested, or is actively investing, a substantial amount of capital in the United States.
Spouses and unmarried children under the age of 21 of an E1 or E2 nonimmigrant may be granted the same status to accompany the E1 or E2.

E1: Nonimmigrant Treaty Investors

The E-1 classification is for a foreign national who is coming to the United States solely to engage in trade of a substantial nature, principally between the United States and the foreign national’s country. The trade involved must be the international exchange of items of trade between the United States and a treaty country. Title to the trade item must pass from one treaty party to the other under successfully negotiated contracts that are binding on all parties.
If the foreign national is already inside the United States, the individual must submit a Form I-129, “Petition for Non-immigrant Worker,” to USCIS in order to request a change of status or an extension of stay. If the foreign national is outside of the United States, the individual must apply for an E-1 visa at a U.S. consular office abroad.

The dependents of age under 21 years can extend their stay to remain with the principal E1 status. They must use the Form I-539 to apply. The husband or wife of an E1 may be authorized to work in the U.S. They must use the Form I-765 to apply. In addition, for question 16 of the form, they must apply under category (a)(17). As long as the dependents are in E1 status they can attend school without changing to another nonimmigrant status.

E2: Nonimmigrant Treaty Investors

The E-2 classification is authorized for a foreign national who is coming to the United States solely to direct and develop the operations of an enterprise in which the individual has invested or is actively involved in the process of investing a substantial amount of capital. The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and it must be subject to loss if the investment fails. If the foreign national is already inside the United States, the individual must submit Form I-129, “Petition for Non-immigrant Worker,” to USCIS to request a change of status or an extension of stay. If the foreign national is outside of the United States, the individual must apply for an E-2 visa at a U.S. consular office abroad.

The dependents can extend their stay to remain with the principal E2 status. They must use the Form I-539 to apply. The husband or wife of an E2 may be authorized to work in the U.S. They must use the Form I-765 to apply. In addition, for question 16 of the form, they must apply under category (a)(17.) The other dependents may not work in the U.S.

As long as the dependents are in E2 status, they can attend school without changing to another nonimmigrant status.

E3:

The new E-3 nonimmigrant category should not be confused with the separate and independent H-1B nonimmigrant category for “specialty occupation” workers.

To qualify for E-3 classification, an alien must, among other things, be an Australian national who is seeking employment in a specialty occupation requiring possession of a bachelor’s degree or higher (or its equivalent), and possess the appropriate degree (or its equivalent) in the field in which the alien wishes to work. E-3 nonimmigrant status is initially granted for a period of no more than two years. Extensions of stay may be granted indefinitely in increments not to exceed two years.

Specialty Occupation: A specialty occupation for an E-3 alien is defined in the Act in the same manner as in the H-1B context. In particular, pursuant to section 214(i)(1) of the Immigration and Nationality Act, specialty occupation means an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. As such, in order to be eligible for an E-3 classification, an alien must be able to show he or she will be employed in a specialty occupation in the U.S. and he or she possess the required U.S. bachelor’s or higher degree (or its equivalent) in the specific specialty to meet the minimum requirement for entry into the occupation in the United States.

Congress has established a yearly cap of 10,500 new E-3 workers. For purposes of the cap, “new E-3 workers” are those who, coming from abroad, are admitted initially in E-3 classification or those who change their nonimmigrant status to E-3 classification or change employers while in E-3 status. Unlike the dependent of an alien in H-1B nonimmigrant classification, the dependent spouse of an E-3 temporary worker may apply for and receive work authorization.
An alien seeking to be admitted in E-3 nonimmigrant classification at a U.S. Port-of-Entry must posses a valid E-3 visa issued by the U.S. Department of State. Aliens already in the United States may request a change of status to E-3 or extend their E-3 status by filing a Form I- 129 (Petition for a Nonimmigrant Worker) directly with the Vermont Service Center. In addition to the Form I-129 , applicants must include the following documentation:

Proof of Australian nationality,

  • A letter from the prospective U.S. employer describing the alien’s occupation, the alien’s anticipated length of stay, and salary/remuneration arrangements,
  • Evidence that the alien meets the educational requirements for the position to be filled (a bachelor’s degree or higher or its equivalent in the specific specialty occupation),
  • Evidence that the alien meets any licensing or other occupational requirements, and
  • Evidence that the prospective U.S. employer has filed with the Department of Labor a labor condition application (LCA) specifically designated for E-3 Specialty Occupations.

The dependent spouse and children of an E-3 principal may also derive E-3 nonimmigrant status, if otherwise eligible, irrespective of the spouse or children’s nationality. Further, an otherwise eligible dependent spouse of an E-3 principal nonimmigrant may apply for an Employment Authorization Document, irrespective of the dependent spouse’s nationality.

Can spouses of E1/E2/E3 work?

The spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. The spouse is entitled to work authorization, but not the children. To apply for work authorization spouse must file a Form I-765, Application for Employment Authorization.

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