Employee Free Choice Act – EFCA Updates

The Immigration and Nationality Act (“INA”) gives special status to citizens of countries which have entered into treaties with the United States. E-1 trader and E-2 investor visas offer benefits which are not available in many other non-immigrant categories. For example, E visa holders can extend the duration of their visas almost indefinitely and do not have to show ties to their home country as long as they affirm that they will leave the United States when the period of their authorized stay (including any extensions) ends. They can also engage in self-employment as entrepreneurs, which is not permitted in most other nonimmigrant categories.

Visas Required for Canadians

While Canadians are visa-exempt for most categories, §212.1(l) of the immigration regulations (“8 CFR”) specifically requires any alien seeking admission as a treaty trader or investor under the provisions of NAFTA must be in possession of a nonimmigrant visa issued by an American consular officer classifying the alien under that section.

Only two consular posts in Canada process E visas. As of January 3, 2006, the United States Consulate General in Vancouver processes E visa cases for British Columbia and Yukon. The United States Consulate General in Toronto processes all E visa cases for Ontario, Alberta, Manitoba, New Brunswick, Newfoundland, NW Territories, Nova Scotia, Nunavut, PEI, Quebec, and Saskatchewan.

If the Canadian is already in the United States under another category, it is also possible to apply for a change of status to E from within the United States. However, if the Canadian leaves the United States and attempts to re-enter, he will still need an E visa issued by a U.S. consulate abroad. The automatic visa revalidation provision available at 22 CFR 41.112(d) will not help a Canadian in this case since he or she will not have a visa to revalidate.

Consulates generally believe that they should be adjudicating E visa cases rather than USCIS (formerly INS) so they will reconsider the case themselves before deciding to issue a visa. In most cases, Canadians seeking E classification are better off applying at a U.S. consulate abroad, even if they are eligible for a change of status.

That said, it might be appropriate to seek a change of status in cases where the alien must commence work pursuant to E status immediately and cannot wait for an E visa case to be adjudicated abroad. In such cases, a change of status might be useful as a short-term measure while the alien’s case is pending at the consulate. Also, in cases where the alien’s E case is too weak to be approved through the consulate in his or her home country, it might be appropriate to file a change of status request and then seek an E visa later, once the business has grown.

Existence of Treaty

INA §101(a)(15)(E) requires the existence of a treaty of Friendship, Commerce, and Navigation (“FCN”) between the United States and another country in order for the E visa classification to be granted to nationals of that country. Similarly, the term “treaty country” is defined in 22 CFR §41.51(a)(5)/22 CFR §41.51(b)(5) as a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. 22 CFR §41.51(a)(5)/22 CFR §41.51(b)(5) also clarifies that a treaty country includes a foreign state that is accorded treaty visa privileges under INA §101(a)(15)(E) by specific legislation (other than the INA). This essentially recognizes the existing E visa eligibility of nationals of the Philippines, Canada and Mexico, which arises from legislation.

A list of treaties or the equivalent in effect between the United States and other countries, which give rise to E classification eligibility, appear in the Foreign Affairs Manual (“FAM”). This list is also reproduced here. The most recent additions to the list of eligible countries are Chile and Singapore. Some treaties permit both E-1 and E-2 visa eligibility while others only permit either E-1 visas or E-2 visas, but not both.

Required Nationality

To qualify for either treaty trader or investor status, the applicant must possess the nationality of the treaty country. The authorities of the foreign state of which the alien is a national determine the nationality of an individual treaty trader or treaty investor.

The nationality of a business is determined by the nationality of the individual owners of that business. A business that is at least fifty percent owned by nationals of the relevant treaty country will be eligible for E status. Therefore, where two aliens equally own a company, both of which possess different nationality, the company will possess both nationalities.

Applicants who hold dual nationality (other than United States citizenship) may qualify for E status but they must hold themselves out as nationals of the treaty country in question. Consequently, such an applicant must be documented and be admitted into the United States as a national of the treaty country from which the treaty benefits accrue. However, nationals of a treaty country who also hold United States citizenship or United States lawful permanent residence status are not considered nationals of the treaty country for the purposes of E eligibility.

The country of incorporation is irrelevant to the nationality requirement for E visa purposes. However, in cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the consular officer may presume that the nationality of the corporation is that of the location of the exchange. However, where the stock of a corporation is exchanged in more than one country, the presumption will not apply. In such cases, the applicant will have to establish nationality through other means.

Canadian citizens are eligible for both E-1 and E-2 status as a result of the North American Free Trade Agreement. Canadian landed immigrants are not eligible for E visas unless their country of citizenship has entered into its own treaty of commerce and navigation or bilateral investment treaty with the United States. In addition, the U.S. Consulate General in Toronto will also entertain an E visa application pursuant to a treaty other than NAFTA where the applicant has been in the United States under an employment authorization for at least six months.

Intention to Depart the United States Upon Termination of Status

Pursuant to 22 CFR §41.51(a)(1)(ii)/22 CFR §41.51(b)(1)(iii), an E visa applicant must “intend to depart from the United States upon the termination of his status.” However, an applicant does not have to establish an intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant does not intend to abandon. The applicant’s expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific evidence to the contrary.

A limited form of dual intent is recognized for E nonimmigrants. The Department of State (“DOS”) position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that she will not remain in the United States to adjust status to lawful permanent resident or otherwise remain in the United States regardless of the legality of his or her status. The USCIS position is that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status after that date.

Notwithstanding the above, INA §214(b) still applies to the E nonimmigrants. A prior overstay or violation of status while in the United States will often strongly infer that the applicant does not intend to depart from the United States upon termination of her status and it will be very difficult to overcome such an inference. The only way to overcome the presumption of immigrant intent in such situations is to establish (if possible) that the violation or overstay was brief and inadvertent.

Employees of Principal Aliens

General

An alien employee of a treaty trader may be classified E-1 and an alien employee of a treaty investor may be classified E-2, if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. Employees of treaty traders or treaty investors seeking E status must also have the same nationality as their employer.

In order to support a treaty investor or treaty trader application filed on behalf of an alien employee of a treaty trader or treaty investor, the employer must be:

A person having the nationality of the treaty country, who is maintaining the E-1 or E-2 status if in the United States or if not in the United States would be classifiable as a treaty trader or treaty investor; or An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader or treaty investor status if residing in the United States or if not residing in the United States who would be classifiable as treaty traders or treaty investors.

In other