Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay or an immigrant visa for permanent residence. Treaty Trader (E-1) and Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation.
The purpose of these visas is to provide individuals with an opportunity to come to the U.S. to carry on substantial trade. This includes trade in services or technology, principally between the U.S. and the treaty country, or 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, under the provisions of the Immigration and Nationality Act.
Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal applicant. The spouse of an E visa holder may apply for employment authorization. Dependent children of an E visa holder are not authorized to work in the United States, but may attend school without changing status.
Treaty Trader (E-1) Visa
The Treaty Trader (E-1) visa is for an applicant whose purpose for entering the U.S. is solely to carry on substantial trade which is international in scope principally between the U.S. and the foreign state of which he or she is a national. The applicant must intend to depart the U.S. upon the expiration or termination of the treaty trade status. There are two-year admission and extensions of stay in 2-year increments.
Treaty trader applicants must meet specific requirements to qualify for a treaty trader (E-1) visa. The consular officer will determine whether a treaty trader applicant qualifies for a visa.
- The applicant must be a national of a treaty country.
- The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
- The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade.
- The trade must be principally between the U.S. and the treaty country.
- Trade means the international exchange of goods, services, and technology. The title of the trade items must pass from one party to the other.
- The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm.
Treaty Investor (E-2) Visa
The Treaty Investor (E-2) visa is for an applicant whose purpose for entering the U.S. is solely to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing, a substantial amount of capital in a bona fide enterprise. To determine whether the investment is “substantial” the Department of State employs a relative- proportionality test. Generally speaking, the lower the cost of the enterprise, the higher, proportionally, the investment must be to be considered substantial. For example, if the total investment is $100,000 or less, the E-2 investor should provide 100% of the investment.
The applicant’s funds must be “at risk.” This means that the capital must be subjected to partial or total loss if investment fortunes reverse. Applicants, however, are able to place funds in escrow pending the approval of the E classification provided that there is a legal mechanism that irrevocably commits funds if the application is approved.
Treaty investor applicants must meet specific requirements to qualify for a treaty investor (E-2) visa. The consular officer will determine whether a treaty investor applicant qualifies for a visa.
- The investor, either a real or corporate person, must be a national of a treaty country.
- The investment must be substantial.
- 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.
- 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 U.S.
- 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.
- The investor must be coming to the U.S. to develop and direct the enterprise.