E-1 Visa | E-2 Visa

E-1 Visa | E-2 Visa – Treaty Traders and Investors

Treaty Trader (E-1) and Investor (E-2) visas are nonimmigrant visas for nationals from countries with which the U.S. has a treaty of friendship, commerce, and navigation (a list of treaty countries can be found at the end of this article).The applicants must be coming to the U.S. to engage in substantial trade between the U.S. and the alien’s country of nationality or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing, a substantial amount of capital.

E-1 and E-2 nonimmigrant visas do not lead to permanent residence or citizenship in the U.S. However, they permit the applicant and qualified family members to live in the U.S. for an extended period of time. Unlike many of the nonimmigrant visas, applicants do not need to show they are coming to the U.S. for a specific period of time, as long as there is an ultimate intention to depart the U.S. and not permanently remain. Applicants are not required to provide proof of a foreign residence.

E-1 Treaty Trader Visas

To qualify for an E-1 Treaty Trader Visa:

  • The firm in the U.S. must have the nationality of a treaty country.
  • The applicant must be a national of the treaty country.
  • The international trade must be “substantial”; there must be a sizable and continuing volume of trade.
  • The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50% of the firm’s international trade involved must be between the U.S. and the country of the applicant’s nationality. Trade means the international exchange of goods, money, services, or technology. Title of items must pass from one party to another.
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the operation of the firm.

The term “trade” is defined to include commercial intercourse in goods and trade in services and technology. This includes banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, technology transfer, and other measurable services which can be traded.

E-2 Treaty Investory Visas

To qualify as a Treaty Investor (E-2):

  • The investor (either a real or corporate person) must be a national of a treaty country.
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost enterprise must be higher than the percentage of investment in a high-cost enterprise.
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify.
  • The investment must not be marginal. It must generate significantly more income than needed to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. For the purpose of measuring the investment, loans secured with the assets of the investment enterprise are not counted.
  • The investor must be coming to the U.S. to develop and direct the enterprise. If applicants are not the principal investors, they must be employed as a supervisor, executive, or as the possessor of highly specialized skills.

Must the trading company exist and/or the investment have been made before the visa can be issued?

Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, contingent only upon the issuance of the visa. Investment funds may come from any country, including the U.S., as long as they are controlled by the investor applicant.

What is substantial trade?

Substantial trade contemplates a continuous flow of trade items between the U.S. and the treaty country. This means numerous transactions rather than a single transaction regardless of monetary value.

What is a substantial amount of capital?

There is no fixed amount which is considered “substantial.” A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test. The proportionality test compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.

Such comparison constitutes the percentage of the treaty applicant’s investment in the enterprise. That percentage must compare favorably in the fashion of an inverted sliding scale starting with a high percentage of investment for a lower cost enterprise. The percentage of investment decreases at a gradual rate as the cost of the business increases. An amount of capital invested in an enterprise is merely presumed to be substantial when it meets or exceeds the percentage figures given in the following examples (amounts shown are in U.S. dollars):

  • 75% investment in an enterprise costing no more than $500,000 (if the cost of the enterprise is substantially lower than $500,000, 85-90%, or even 100% investment may be required).
  • 50% investment in an enterprise costing more than $500,000 but no more than $3,000,000.
  • 30% investment in any enterprise costing more than $3,000,000.

A multi-million dollar investment by a large foreign corporation is normally considered substantial, regardless of the examples given above.

The investment must do more than merely yield a return capable of supporting the investor and family. A marginal enterprise is an enterprise which does not have the capacity to generate significantly more than enough income to provide a living for the investor, family and other alien employees.

Are joint ventures permitted?

Yes, provided that the business or individual investor applying for the visa is in a position to “develop and direct” the enterprise. The applicant is in such a position by controlling the enterprise through ownership of at least 50% of the business, possessing operational control through a marginal position or other corporate device, or by other means showing the applicant controls the enterprise.

How long may the Treaty Trader or Investor stay in the U.S.?

The applicant must have the intention of departing the U.S. upon conclusion of the commercial activities. Nevertheless, holders of E-visas may reside in the U.S. as long as they continue to meet E-visa qualifications.

“Essential employees” may remain only as long as their skills are required to operate the business, and only as long as the owner can show either that US workers cannot be trained to duplicate the skills or that the owner is making reasonable efforts to train US workers as replacements.

The maximum period of time of admission is two years. Extensions are granted up to two years at a time. Extensions are generally available for as long as the E-visa holder and family maintain their E-visa status.

Spouses and dependent children

Spouses and children under age 21 qualify for derivative E-visas based on the principal applicant’s qualification. It is not necessary that they hold the nationality of the principal applicant. To qualify, you must demonstrate that the established relationship exists. Usually this can be accomplished with a marriage or birth certificate. You must also show that the principal applicant is the recipient of an E visa. Please note that the U.S. does not recognize De Facto relationships, and to qualify as a spouse you will need a marriage certificate from the Department of Births, Deaths and Marriages.

Spouses are entitled to work in the U.S. The spouse of a qualified E nonimmigrant can apply for work authorization upon entering the U.S. by filing an I-765 Application for Employment Authorization with the appropriate USCIS Regional Service Center.

Children are not entitled to work; however, they are permitted at attend school without changing status.

Application Procedures

If the applicant is outside the U.S., the application is made directly with the U.S. Consulate. Most consulates use Form DS-156 visa application and Form DS-156E supplemental form. All supporting evidence and fees are submitted to the consular officer. Be sure to check the U.S. Consulate’s for their specific procedures regarding visa applications and interviews. They will also list the visa application fees and current forms to submit.

If the applicant is in the U.S. and is applying for a change or extension of status, the application is made by filing Form I-129 along with the E Classification Supplement with the appropriate USCIS Regional Service Center. All supporting evidence and fees are submitted should be submitted with the Form I-129. Once the petition is approved, the USCIS will send a notice of approval with a detachable I-94 Arrival/Departure Record. A new visa may be required if the beneficiary subsequently leaves the U.S. and wishes to re-enter.

Entry into the U.S.

Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant who is inadmissible under INA, even if the applicant has a visa. Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

List of treaty countries

In order to obtain an E-1 or E-2 visa, you must be a national of one of the following treaty countries (E-1 and E-2 available, unless otherwise indicated by * or **):

AlbaniaCongo (Brazaville) **HondurasMexicoSpain
ArmeniaCongo (Kinshasa)**IranMoldova**Sri Lanka**
AustraliaCosta RicaIrelandMongolia**Suriname
Azerbaijan**Czech Republic**ItalyNetherlandsSwitzerland
Bosnia-Herzg.EthiopiaKorea (South)ParaguayTunisia**
ColombiaGreece*LuxembourgSlovak Rep.**

* indicates country is eligible only for E-1 visa.
** indicates country is eligible only for E-2 visa.