Regrettably, Israeli industry, from high-tech to life sciences and to pharmaceuticals, has been placed at a distinct disadvantage with regard to the kinds of US visas needed to compete meaningfully for American markets against the rest of the world.
For example, the E-2 (Treaty Investor) visa, which is widely used by competitors from Germany, England, Japan and elsewhere, is unavailable to the Israeli business community. (The E-2 visa classification lies in treaties that were entered into, at least in part, to enhance and facilitate bilateral investment between the United States and the treaty country. There is no qualifying treaty that permits Israeli nationals to be accorded E-2 visa classification.)
As a result, the E-1 (Treaty Trader) visa has become a principal visa option for Israeli companies looking to send employees to work in the US. The E-1 visa concerns trade with the United States: indeed, the ability of Israelis to use this visa arises from the treaty that promotes trade between Israel and the US. Under this treaty, Israelis involved in the import or export of goods, services or technology may apply for E-1 visas to advance that trade in the US.
This article discusses how practitioners can most effectively process E-1 visa applications on behalf of their Israeli corporate clients at the US embassy in Tel Aviv. The author hopes this article will be of equal value to immigration lawyers applying for E-1 visas at US consular posts in any treaty trader country, when they act for companies that are majority-owned by, and for employees who are, citizens of that country. References herein to ‘9 FAM' are to volume 9 of the US Department of State's Foreign Affairs Manual.
QUALIFYING FOR THE E-1 VISA
To qualify for the E-1 visa, both the company and the individual employee need to meet certain requirements.
In this context, at least 50 per cent of the company must be ultimately owned by citizens of Israel (see 9 FAM 41.51 N3.1). An individual who holds dual US citizenship or is a US permanent resident is not considered an Israeli for these purposes (see 9 FAM 41.51 N14.1(1)).
The company must have a documented record of substantial trade between Israel and the United States.
"Trade" includes the exchange of goods, services or technology (9 FAM 41.51 N4.2). Thus, companies from a wide range of fields, including tourism, banking, diamonds, communications, management consultants, engineering and even law, may send employees to work in the United States under the auspices of an E-1 visa.
The company can show that its trade with the US is "substantial" by proving that this trade is continuous and ongoing (9 FAM 41.51 N6). There is no requirement that this trade reach a minimum monetary amount in any given year; what is required is proof of multiple trade transactions carried out over an ongoing period (ibidem). Potential future trade will generally not be considered by the US consul in deciding whether the company's trade with the US is "substantial" (9 FAM 41.51 N4.4).
The trade must be conducted principally between Israel and the United States (see 9 FAM 41.51 N7). Accordingly, over 50 per cent of the volume of international trade of the company must be conducted between the United States and Israel.
No payment, no trade. To qualify for the E-1 visa, the company must show actual transfers of payments in return for its products, services or technologies (9 FAM 41.51 N4.2).
Once the US consul confirms that the company meets the above requirements, the firm can apply for E-1 visas on behalf of its employees. In reviewing an employee's E-1 visa application, the consul will look to see whether the worker meets the requirements of possessing Israeli citizenship - the employee must be an Israeli citizen, with a valid Israeli passport (see 9 FAM 41.51 N3.3); and a job position - the employee must be designated for one of the following positions in the company:
An executive/supervisor is primarily responsible for setting goals and policies of the company, or for supervising the firm's overall operations or a major component thereof. For example, a chief executive officer (CEO) or a chief technology officer (CTO).
A manager is primarily responsible for how the company's goals and policies are carried out. In so doing, most managers direct the work of subordinate professional-level employees. For example, a business development manager or a project manager.
The position of a manager is not listed in 9 FAM 41.51 as a potential E-1 job position. According to the Foreign Affairs Manual, E-1 visa classification is appropriate for employees "destined to an executive/supervisory position"; and employees with "skills essential to the firm's operations in the United States" (9 FAM 41.51 N1.1 (6)). That said, part III of form DS-156E (the Department of State's formal E visa application form) indicates that an E-1 employee can be an executive, a manager or a supervisor (state.gov/documents/organization/79963.pdf). In practice, the US embassy in Tel Aviv entertains E-1 visa applications on behalf of employees destined to executive, managerial or essential skills positions.
Essential skills position
An essential skills position requires specialised skills essential to the efficient operation of the enterprise, most commonly an advanced level of knowledge of the company's products, technologies or procedures. In most cases, an application for an essential skills employee will show that US workers will eventually be trained to replace this person. For example, a sales specialist and a field services engineer.
The element of personal trust in a key employee, which is critical in the real business world (and particularly in the diamond industry), is generally not considered to constitute an essential skill for E-1 visa purposes. Moreover, the fact that the employee speaks Hebrew or some other foreign language is also generally discounted as an essential skill.
APPLYING FOR THE E-1 VISA
Companies wishing to send workers to the US with E-1 visas must first seek to be registered by the US embassy as an E-1 company on the basis of meeting the two company requirements discussed above (ownership and trade).
In this example, the embassy will expect the company to prove its Israeli ownership through documents such as: printout of company data from the Israeli companies registrar, showing the names of the shareholders and the percentage each of them holds in the company; stock certificates and ledger; and capitalisation table.
In all cases, the embassy also requires a formal letter from the company's public accountant, describing the ownership structure of the company and the citizenship of the individual owners.
The embassy will expect the company to show its trade through documents such as:
• invoices of purchases and sales for the past year;
• bank records;
• bills of shipment;
• contracts; and
• current financial statements.
Again, and in all cases, the embassy requires a formal statement from the company's public accountant describing international imports and exports conducted by the company for the past year. The statement must include:
• from which countries the company imports;
• to which countries the company exports;
• the volume of trade with each country; and
• the volume of returned goods (if applicable).
Companies are also required to complete parts I and II of form DS-156E. Companies may not file stand-alone requests to qualify as an E-1 company at the US embassy in Tel Aviv. Instead, company requests must be accompanied by an E-1 visa application for a specific employee.
Companies must prove to the US embassy that the employee they wish to send to the US is qualified for the position.
The embassy will expect the company to prove the worker's qualifications through documents such as: the employee's CV; detailed written description of the employee's background (professional and academic); and copies of educational and training certificates.
Employees are also required to file a number of formal state department application forms, including: DS-156 (non-immigrant visa application form); DS-157 - males aged 16 to 45 are required to complete this supplemental security questionnaire; and part III of form DS-156E.
Company and employee documents are sent by mail to:
E1/E2 Visa Assistant
Embassy of the United States of America
71 Hayarkon Street
Tel Aviv 63903
Evaluation of the requests takes four to six weeks. If the embassy has no questions, it will then contact the company to schedule an E-visa interview.
In reality, the interview session consists of two separate, consecutive interviews:
• In the first interview the US consul considers the company's request to register as an E-1 company, questioning the company about its ownership and trade. This interview is generally conducted between the US consul and the company's immigration attorney.
• If the company's request is approved, the US consul proceeds directly to the second interview, questioning the employee about his or her eligibility for the offered position. This interview often includes questions about the worker's plans to immigrate to the US (see below) and his past visits to the US.
If all goes well, the company is officially approved as an E-1 company for the next 12 months; and the worker is issued an E-1 visa, with validity of up to 60 months.
Additional workers applying during the next year for E-1 visas may do so through an expedited process that generally takes two to three weeks.
The US embassy's website contains a very detailed description of the E-1 visa application, which can be located at: //telaviv.usembassy.gov/consular/niv/Evisas.aspx
MISCELLANEOUS E-1 PRACTICE TIPS
The E-1 visa is classified as a temporary work visa. Even though an E-1 employee may extend the length of his or her US stay for a relatively long period, the US consul in Tel Aviv will invariably question the employee about his or her intent to eventually depart the US and return to Israel (see 9 FAM 41.51 N15).
Change of status
A previous change of non-immigrant status approved by USCIS does not provide any procedural shortcut for obtaining an E-1 visa at the US embassy in Tel Aviv. If and when the individual employee applies for an E-1 visa, the consul will require the company and the employee to prove their eligibility for E status from scratch, notwithstanding any prior USCIS approval. Thus, in planning the employee's trip back to Israel, take into account that the E-1 visa process could take a couple of months.
Attorneys may appear at the embassy visa interview on behalf of companies requesting E-1 qualification.
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The E-1 visa process described above is in many aspects similar in any trader treaty country.