American fly against blue sky.

The U.S. Department of State recently updated four provisions in the Foreign Affairs Manual (FAM) related to visa processing for E-1, E-2, and E-3 applicants and eligible family members (i.e., spouses and children) seeking derivative status.

Quick Hits

  • The State Department’s updated guidance instructs consular officers to defer to prior determinations of substantiality in their review of E-2 Treaty Investor applications. Under the guidance, if an officer has previously determined that the sum invested by an applicant was substantial, the applicant does not need to be reevaluated on this criterion unless there has been a change in ownership.
  • The updated guidance clarifies best practices for consular posts with E-visa company registration programs.
  • The revisions further expand upon the discussion of immigrant intent, as it relates to E-3 visas for Australian citizens.
  • Modifications to the FAM also highlight major changes in the treatment of derivatives from treaty and non-treaty countries.

The United States currently maintains treaties of commerce and navigation with more than eighty countries around the world. An individual applying for an E visa as a principal applicant must be a national of a treaty country. The E category includes treaty traders (E-1) and treaty investors (E-2), eligible employees, and Australian specialty occupation workers (E-3).

Substantiality Requirement

An applicant for an E-2 Treaty Investor application must show, among other criteria, that he or she will be entering the United States to “develop and direct the operations of an enterprise in which [he or she] has invested a substantial amount of capital.” The State Department has added language to 9 FAM 402.9-6(D) confirming that a consular officer does not need to reevaluate whether the sum invested by an applicant is substantial, if a prior determination has been made. The State Department makes clear, however, that deference to a prior determination will not apply if there has been a change in ownership, which includes business acquisitions.

E-Visa Company Registration

Under 9 FAM 402.9-7(D), the State Department encourages the use of a centralized database housing information on companies that have already met E-visa standards through the approval of prior E-visa application(s). The State Department notes, however, that the absence of a company’s presence in the database should not be used as evidence to disqualify an applicant from visa eligibility.

The State Department expanded its listing of information consular officers may use in the registration program to include “date of most recent review of company registration, number of U.S. staff, volume/number of trades between the treaty country and [the United States] (E-1), amount of investment (E-2), operating/net income, nationality of company, … and adjudication decision on enterprise,” among other factors.

Further, the State Department clarified the criteria to be applied to determine whether a company that is registered or seeking registration is in good standing. This includes whether the company has an employee who is in E status and/or holds a valid E visa and whether the registration of the company has been reviewed every five years, at a minimum. Notably, the State Department recognizes that it may be difficult for consular officers operating in posts with higher volumes of E-visa applications to review company registrations every five years, and the absence of a review within the past five years alone would not be sufficient grounds to terminate a company’s E status.

Intent to Depart

The E-3 visa is a nonimmigrant work visa available to Australian nationals seeking to enter the United States to work in a specialty occupation. The visa in not a dual-intent visa, which means that the applicant must intend to depart the United States upon the expiration of the applicant’s authorized period of stay in the United States.

In the latest round of modifications, the State Department expands upon its discussion of intent at 9 FAM 402.9-8(G), as it relates to E-3 visas, adding a paragraph that states: “An E visa applicant is presumed to be an immigrant until the applicant establishes … that they are entitled to E nonimmigrant status.” This language appears to serve as a reminder for consular officers to presume that all E-3 visa applicants have immigrant intent. The presumption of immigrant intent can be overcome through evidence of an applicant’s intent to depart.

Treatment of Spouses and Children

The State Department also updated its guidance regarding the treatment of spouses and children in the issuance of derivative E visas. Where prior guidance had allowed consular officers to match the validity period of a derivative E visa to the principal applicant, the State Department now distinguishes the treatment of derivatives of treaty countries from derivatives of non-treaty countries.

More specifically, spouses and children of an E-visa applicant from a treaty country will be subject to the visa reciprocity guidelines for their country of nationality, or the duration of the principal applicant’s visa and/or authorized stay, whichever is shorter.

Under these new guidelines, a principal from a treaty country with sixty-month reciprocity would receive a sixty-month visa. The principal’s spouse who was from a treaty country with twenty-five-month reciprocity would receive only a twenty-five-month visa and not a sixty-month visa.

If a principal were from a treaty country with twenty-four-month reciprocity and his or her spouse were from a treaty country with sixty-month reciprocity, both the principal and spouse would receive twenty-four-month visas. This is because the principal’s reciprocity would be shorter than the spouse’s treaty country reciprocity.

Spouses and children who are nationals of a country where an E treaty agreement does not exist will receive visas of the same duration as the principal applicant’s E visa.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will provide updates on the Immigration blog as additional information becomes available.

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