E-1 Treaty Trader; E-2 Treaty Investor

The E non-immigrant status is available to citizens of certain countries with whom the United States has a treaty or other agreements. There are two types of E status. E-1 is known as the treaty trader visa and E-2 is the investor visa.

E-1 Treaty Trader Visa

General Requirements: The E-1 treaty trader status allows foreign nationals of a treaty country to come to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country. The eligibility requirements include:

1) The applicant must be a national of a treaty country;

2) The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country;

3) The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade;

4) The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality;

5) Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other; and

6) The foreign national must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

E-2 Treaty Investor Visa

General requirements: The E-2 investor status allows foreign nationals of a treaty country to come to the United States to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. The eligibility requirements include:

1) The investor, either a real or corporate person, must be a national of a treaty country;

2) The investment must be substantial. There is no fixed minimum requirement, but small amounts of capital in a small enterprise will not succeed. The investment must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise;

3) The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment, nor is simply buying property for potential appreciation value. Also, the investment must be for a commercial enterprise, meaning nonprofit organizations do not qualify;

4) The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States;

5) The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed; and

6) The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

Applying for the Visa: The foreign national entrepreneur may apply directly with the consulate without first receiving prior approval of a petition from USCIS. The foreign national may also seek to change status in the U.S., but if the national travels outside the United States he or she will need to apply for the E visa at the consulate before returning, risking rejection and loss of the time and investment in the U.S. enterprise.

The supporting documentation about the trade or investment may be extensive to establish eligibility for the visa. For example, documents about the U.S. operations should include, among others, a business plan, proof of assets and/or investment, incorporation documents, photos of facilities, and a job description and experience of applicant. In addition, each embassy/consulate has specific application requirements.

Family Members: Dependent family members (spouse and children under age 21) of a trader or investor will be admitted in the same category as the principle visa holder, regardless or nationality. Spouses may apply for employment authorization after obtaining E status.

Time Limits: The duration of stay for E-1 and E-2 visas is initially two years at admission, which can then be extended in increments of up to two years at a time as long as E status is maintained.

Quotas: There are no quota restrictions for E-1 and E-2 visas.

List of Treaty Countries: The State Department’s website provides a list of all eligible countries .

Other Information: See also the L-1 nonimmigrant visa, the nonimmigrant E-1 treaty trader and E-2 investor visas, and the EB-5 immigrant investor visa for other business-related options.

For more information about the E-1 and E-2 visas or other options for living and working in the United States contact the attorney-author Vonda K. Vandaveer at atty@vkvlaw.com or 202-340-1215.