E-1 Visa (Treaty Trader) and E-2 Visa (Treaty Investor)

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Description

The E visa category was designed to give effect to trade and investment treaties between the U.S. and foreign nations providing reciprocal benefits to the nationals of the nations signing the treaties; in this way, facilitating commercial interaction between the U.S. and treaty countries.

It allows investors making a substantial investment in the U.S. (see below definition of “substantial” for investment purposes); or business owners, managers, and employees of an enterprise conducting trade between the U.S. and a treaty nation, who need to remain in the U.S. for extended periods of time to supervise work performed in the U.S., to be able to live and work lawfully.

There is currently a premium processing option, which for an additional $1,000 in filing fees, the US Immigration Service will commit to process the application within 15 calendar days from receipt of the application. Processing the application does not mean that there will necessarily be a final decision after 15 days, but rather that there will be a response after this time. This response may be a visa approval, a denial or it may also include a request for additional documentation from the petitioner or the employer. Click here for more information on premium processing.

Who Is Eligible

For the E-1 Treaty Trader visa:

Aliens who are citizens of a nation that has signed a trade and investment treaty with the U.S., who are coming to the United States:

  • Solely to carry on or engage in substantial trade between his/her country and the U.S., including trade in services or trade in technology.
  • Principally between the United States and the foreign state of which the alien is a national.

Substantial” with reference to trade means a continuous exchange of goods and services between the U.S. and the treaty nation of the alien applicant, involving numerous transactions that began prior to the filing of the E-1 application. Trade principally between the U.S. and the foreign state means that at least 50% of the total amount of trade conducted by the alien or his/her enterprise or employer must be between the U.S. and the treaty nation.

For the E-2 Treaty Investor visa:

Aliens who are citizens of a nation that has signed a trade and investment with the U.S., who are coming to the United States:

  • solely to develop and direct the operations of an enterprise in which he/she has invested; or
  • solely to develop and direct the operations of an enterprise in which he/she is actively in the process of investing a substantial amount of capital; or
  • as an employee who will perform services that require special qualifications essential to the operations of the treaty investor’s enterprise, who has the same nationality as the treaty investor employer or the nationals owning at lest 50% of the enterprise, who must be under treaty investor status if residing in the U.S.; and
  • showing an intention to depart from the United States upon the termination of his or her status.

The definition of “Substantial” with reference to investment is at the discretion of the Secretary of State. However, in exercising this discretion, the Secretary of State conducts a “Relative Proportionality Test” as a guideline.

Through this test, they asses whether: 1) the value of the investment is substantial as a percentage of the fair market value of the enterprise, or 2) whether the value of the investment is substantial as a percentage of the capital usually required to establish the specified type of business in the specified industry, as per the visa application.

In addition, the investment enterprise must not be “marginal”, meaning it must have the capacity in the present or future to provide income more than a living wage to the investor and his/her family.

Although each case is evaluated individually by the State Department, generally the following rules apply in terms of minimum investment expectations:

  1. For investment enterprises valued at less than $500,000
    • A minimum of 75% of the total value of the enterprise or for small to medium sized businesses, more than half of the value of the business
    • Exceptions may be made for certain start-ups and service businesses, where smaller initial investments may be appropriate depending on the particulars of the type of business
  2. For investment enterprises valued between $500,000 and $3 million
    • A minimum of 50% of the value of the business or a flat $1,000,000 is expected to be invested
    • The State Department may make an exception if it can be demonstrated that in the specified industry, it is common practice to start a business with less than 50% of the value of the enterprise.
  3. For investment enterprises valued at over $3 million
    • A minimum of 30% of the value of the business or a flat $1,000,000 is expected to be invested

All of the following three elements must exist for the E visa to be obtainable:

  • There must be a treaty between the U.S. and the country of the company or national applying for the visa
  • The majority ownership or control of the enterprise engaged in trade or investment with the U.S. must be held by nationals from the country which has signed a trade/investment treaty with the U.S.
  • Each employee or principal seeking E status must hold citizenship of the country, which has signed a trade/investment treaty with the U.S.
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