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Sep17

E-1 Treaty Traders and E-2 Treaty Investors

Temporary Visa through Trade (E-1) or Investment (E-2) in the United States

E-1 visas for Treaty Traders and E-2 visas for Treaty Investors are available to nationals of countries with which the United States maintains a Free Trade Agreement, a Bilateral Investment Treaty, or a Treaty of Friendship, Commerce, or Navigation. Many countries share such treaties with the United States, including Canada, Mexico, most European countries, Chile, Israel, Japan, the Philippines, and others.

E-1 Visa for Treaty Traders

The E-1 visa classification is for a foreign national who is coming to the United States solely to engage in trade of a substantial nature, principally between the United States and the foreign national’s country.

Primary Requirements and Considerations for the E-1 Visa

  • Foreign national must be from a country with which the United States has a qualifying treaty.
  • Foreign national must carry on substantial trade, which means the continuous flow of sizable international trade items, involving numerous transactions over time. A single transaction, even if of high monetary value, is not enough to qualify.
  • Foreign national must carry on principal trade between the United States and the qualifying E-1 treaty country. Principal trade exists when over 50% of the total volume of international trade is between the United States and the Treaty Trader’s country.
  • Title to the trade item must pass from one treaty party to the other under successfully negotiated contracts that are binding on all parties.
  • The trade involved must be the international exchange of items of trade between the United States and a treaty country for consideration. Items of trade include, but are not limited to, goods, services, international banking, insurance, transportation, tourism, technology and its transfer, and some news-gathering activities.
  • There is no minimum requirement regarding the monetary value or volume of each transaction, but greater weight is given to more numerous exchanges of greater value.
  • Sources of proof are bills of lading, customer, receipts, letters of credit, insurance papers documenting commodities imported, purchase orders, carrier inventories, trade brochures, and sales contracts.
  • Income from continuous flow of international trade should be sufficient to support the Treaty Trader and family to prove “substantiality” of the trade.

E-2 Visa for Treaty Investors

The E-2 nonimmigrant visa classification is for a foreign national to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

Primary Requirements and Considerations for the E-2 Visa

  • Foreign national must be from a country with which the United States has a qualifying treaty.
  • The principal foreign investor must be seeking to enter the United States solely to develop and direct the investment enterprise. Passive investment is not allowed.
  • Develop and direct means managing the business and having operational control, although some hands-on management incidental to developing the business is allowed. The “develop and direct” criterion may also be met by showing at least 50% ownership of the enterprise, as long as the Treaty Investor is not contractually precluded from taking action (i.e., exercising veto power.)
  • Foreign national must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States. The E-2 business must be a “bona fide enterprise” that is a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit.
  • An investment is the foreign national’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. Investment funds must be subject to partial or total loss if investment fortunes reverse. Funds must be the investor’s unsecured personal business capital or capital secured by personal assets. The source of funds can be abroad or within the United States, but funds cannot be those of third parties. Funds cannot be obtained through criminal activity.
  • Investment funds must be irrevocably committed to the E-2 enterprise.
  • While there is no minimum investment amount, the lower the cost of the business, the higher, proportionally, the investment must be to be considered substantial. A substantial amount of capital must be (a) substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; (b) sufficient to ensure your financial commitment to the successful operation of the enterprise; and (c) of a magnitude to support the likelihood that you will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial. As a rule of thumb, if the total investment is $100,000 or less, the E-2 Investor should provide 100% of the investment.
  • The investment enterprise may not be marginal. It must have the present or future capacity to generate more than enough income to provide a minimal living for the E-2 Investor and family, and it should have the capacity to generate such income within five years from the date that the E-2 classification begins. Factors proving that the enterprise is not merely marginal include that the investment (a) will expand job opportunities; (b) generate other sources of income; and (c) generate income substantially above what would be considered a living.

Employees of E-1 and E-2 Enterprises

E-1 and E-2 visas are available for principal Treaty Traders and Treaty Investors and their key employees, who are from the same treaty country as the principal. Employees must be either (a) executives and supervisors with ultimate control and responsibility for the enterprise’s overall operation or a major component of it or (b) non-supervisory persons with special qualifications who are essential employees. If an employee is essential depends on the employee’s academic degree or proven expertise in the area of operations, the uniqueness of the specific skill, the function of the job to which the applicant is destined, the salary such special expertise can command, how indispensable the employee is to the success of the enterprise, and availability of U.S. workers.

Period of Stay for E-1 Treaty Traders, E-2 Treaty Investors, and E-1/E-2 Employees

Qualified Treaty Traders/Investors and their employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-1 or E-2 nonimmigrant may be granted. All E-1 or E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. Treaty Traders/Investors and their employees may travel abroad and will generally be granted an automatic two-year period of admission when returning to the United States. There is no overall time limit on E-1/E-2 visas.

Consular Processing of the E-1/E-2 Visa abroad versus Petitioning from within the United States

If the Treaty Trader/Investor currently is outside of the United States, he or she can submit the petition for E-1 or E-2 visa classification directly to the local U.S. Embassy or Consulate for processing. Upon issuance of the visa abroad, the Treaty Trader/Investor may then apply to a DHS immigration officer at a U.S. port of entry (airport, land border crossing) for admission as an E-1/E-2 non-immigrant.

If the Treaty Trader/Investor currently is inside the United States in a lawful non-immigrant status, he or she may submit to USCIS a request for change of status to E-1 or E-2 visa classification on Form I-129. A successful change of status will allow the Treaty Trader/Investor to remain in the United States in accordance with the terms of the visa. Note – if the Treaty Trader/Investor has to travel internationally, he or she must first submit the E-1/E-2 petition to the U.S. Embassy or Consulate in his or her home country and obtain a visa stamp there before returning to the United States.

Family of E-1 Treaty Traders and E-2 Treaty Investors

Treaty Traders/Investors and their employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the Treaty Trader/Investor or employee. Family members may seek E-1/E-2 classification as dependents and, if approved, generally will be granted the same period of stay as the principal visa holder. If family members are already in the United States and seeking change of status to or extension of stay in an E-1/E-2 dependent classification, they may apply by filing a single Form I-539 with fee. Spouses of E-1/E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no specific restriction as to where the E-1/E-2 spouse may work.

Contact our Immigration Practice Group

If you are an employer or individual in need of immigration assistance, please contact us. We are here to provide personalized expert advice and assistance with all of your immigration needs and look forward to being of assistance to you.