01/06/09

E Treaty Trader and Investor Visas

Treaty Traders (E-1) and Treaty Investors (E-2) are elibible for a visa for themselves and family members to work in the U.S. to operate their business. E visas may be extended indefinetly, as long as the business continues. However, E visa holders must maintain the intent to return to their home country when their U.S. business is completed. The E visa does not lead toward employment-based immigration. Family members may apply for work authorization to work for any U.S. company.

Requirements for an E-1 (Treaty Trader) Visa

  1. The E-1 Visa applicant must be a national of a designated treaty country.
  2. The U.S. trading company must be majority owned and controlled by nationals of the treaty country.
  3. The international trade must be “substantial” in the sense that there is a sizable and continuous volume of trade.
  4. The trade must be principally between the United States and the treaty country, which means that more than half of the international trade involved must be between the United States and the treaty country.
  5. Trade means the international exchange of goods, services or technology. If the trade item is services, then there must be evidence that the services were provided. If the trade items are goods or technology, then there must be evidence that ownership has passed from one party to another. In either event, the trade must be made in exchange for something of value.
  6. The E-1 Visa applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the successful and efficient operation of the commercial enterprise. Ordinarily skilled or unskilled workers generally do not qualify.

Requirements for an E-2 (Treaty Investor) Visa

An E-2 Treaty Investor visa requires investing in a new or existing business. The investment must be "at risk" meaning that the investment funds are being used to establish the business, lease office space, buy equipment, etc.
  1. The investor, either a person or business entity, must be a national of a treaty country.
  2. The investment must be substantial, but there is no stated minimum dollar amount.  Instead, it is the applicant's burden to establish that the investment is sufficient to ensure the successful operation of the business. This is a flexible standard which recognizes that a service-related business requires less capital to operate than a large manufacturing enterprise. The investment can include not only cash, but also machines, supplies, equipment and other assets owned by the investor and transferred to the business.
  3. The investment must be applied to open and operate the business. Simply having uncommitted funds in a business bank account is not considered an investment.
  4. The investment may not be marginal. It must generate significantly more income than just to pay the living expenses of the investor and his or her family.
  5. The investor must prove that he or she is the source of the funds or owner of the assets, not a 3rd person or silent partner. Loan proceeds may not be included in the investment, unless the loan is secured by the investor’s personal assets.
  6. The investor must be coming to the U.S. to develop and direct the enterprise, and be qualified to work in that capacity. 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.
  7. The investor must have the ultimate intention to return home. However, the E-2 visa may be extended as long as the business remains in operation.