Murthy Seeking Access to E-1 and E-2 Visas for Indian Nationals

Nonimmigrant visas help American businesses to compete in the global hunt for talent, allowing them to hire the best and brightest minds available on the international labor market. Virtually everyone in the U.S. high-tech industry has heard of the two most common nonimmigrant visas – the H1B and L-1 – but two other nonimmigrant visa options are very useful, though less well known: the Treaty Trader (E-1) and Investor (E-2) visas, which can supplement these more traditional visa categories. These visas not only help individual businesses; in the larger economy, they play a valuable role in stimulating international trade and investment in the United States.

How do these work? Treaty Trader (E-1) visas allow entry in nonimmigrant status to nationals of certain countries – and their qualifying employees – based on substantial trade between the U.S. and the treaty trader’s country of origin. Treaty Investor (E-2) status is based on a substantial investment of capital in a bona fide enterprise in the United States. Both E-1 and E-2 visas can be used by executives, supervisors, and essential personnel of the U.S. company.

In both cases, the initial status is granted for up to two years, and may be extended in increments of up to two years, with no limit on extensions, provided the treaty trader, treaty investor, or employee continues to work in the activity for which the visa was initially approved. Spouses and unmarried children under 21 may accompany treaty traders, treaty investors, and their qualifying employees, and spouses are eligible for work authorization. [See E-1 Treaty Traders, USCIS WebSite and E-2 Treaty Investors, USCIS WebSite.]

The problem: companies owned by Indian nationals are currently prohibited from using these nonimmigrant visa options. Both visas – E-1 and E-2 – are only available to countries with which the United States has a treaty of commerce and navigation – or a similar agreement – and the U.S. and India don’t have one.

India is far from alone in this. The U.S. also lacks qualifying treaties with all of the other BRICS nations – Brazil, Russia, China, and South Africa – although it has signed them with dozens of other countries, including many of India’s regional neighbors, like Pakistan and Iran, and has recently added signatories like Jordan, Lithuania, Bahrain, and Bolivia.

Murthy Law Firm is working to level the playing field for Indian nationals who could benefit from Treaty Trader and Treaty Investor visas. We are reaching out to influential senators to build support for a bilateral treaty of commerce and navigation with India, which would make Indian nationals eligible for E-1 and E-2 visas.

During the August Congressional recess, Murthy Law Firm Attorney Joel Yanovich held an initial round of exploratory discussions with Erin Neill, Legislative Assistant to Senator Barbara A. Mikulski, a senior member of the Senate from Ms. Murthy’s adopted home state of Maryland. Ms. Mikulski chairs the powerful Senate Appropriations Committee as well as the Senate Appropriations Subcommittee on the Department of State, Foreign Operations, and Related Programs, which controls the purse strings of U.S. foreign policy. Senator Mikulski’s office was receptive to the Murthy proposal, and suggested ways to build support for it among the key stakeholders in Washington.

Because this requires a bilateral treaty, it is not simply a matter of rolling the issue into Congressional negotiations over comprehensive immigration reform. This is sure to require a good deal more lead time – and diplomatic spadework – but there’s no time like the present to get the process started. There’s also no compelling reason that Indian nationals should not have access to the E-1 and E-2 programs, which so many other nationalities do already!

Be assured the Murthy Law Firm will continue to press for equal treatment for India, in this, as in every sphere that touches upon immigration law. MurthyBlog readers will be updated as things progress.

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