Congress has passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023. This act designates Portugal as an E-1/E-2 treaty country. Should the president sign this bill, it will give Portuguese nations E-1 and E-2 visa eligibility.

E-1 and E-2 visas are for investors and treaty traders who come to the United States. The visas allow them to enter as part of a treaty of commerce and navigation between the country they represent and the United States. Approximately ninety countries qualify to have their citizens or nationals receive E-1 and/or E-2 visas. If the president signs the bill, Portugal will count among the qualified countries.

The bill includes a new requirement that individuals must satisfy to prove eligibility for the E-1 or E-2 visas. Those who obtained citizenship to qualify for an E-1 or -2 visa by investing must prove domicile in that country for at least three straight years. This period must take place at any point before they apply for either visa. This requirement limits the eligibility of individuals who acquire citizenship through immigrant investor programs, which countries like Portugal have allowed. However, this requirement exempts individuals who obtained E-1 or -2 status before the bill passed.

Here are the basic eligibility requirements for E-1 and E-2 status.

General Eligibility for an E-1 Visa:

• “Be a national of a country the United States maintains a treaty of commerce and navigation with;
• Carry on substantial trade; and
• Carry on principal trade between the United States and the treaty country which qualified you for E-1 classification.”

General Eligibility for an E-2 Visa:

• “Be a national of a country the United States maintains a treaty of commerce and navigation with;
• Have invested, or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
• Be seeking to enter the United States to develop and direct the investment enterprise.”

A person could also come to the United States in E-1 or E-2 status by becoming an employee of a treaty investor or treaty trader. The requirements for this include the following:

• Be the same nationality as the main alien employer (who must have the nationality of the treaty country);
• Meet the definition of “employee” under relevant law; and
• Be either engaging in duties of an executive or supervisory position or, if employed in a lesser capacity, have special qualifications.

Many companies in the U.S. have difficulty finding enough employees to fill their open positions. As such, they should consider whether E-visas help fill these positions. However, it is also necessary to prepare for all the paperwork this can involve, including the employment eligibility verification process (Form I-9). Completing Form I-9 can prove more difficult for these employees due to the wide range of documents they may present. The easiest way to ensure compliance with I-9 requirements is to use an electronic I-9 management system. This system will guide employers through the process step-by-step and securely store the form and any accompanying documentation.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.

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