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E - Treaty-Traders/Investors

The E nonimmigrant visa category permits certain foreign nationals to work and travel in the United States as employees of Treaty-Trader organizations or as Treaty-Investors. The E nonimmigrant visa classification consists of two distinct nonimmigrant visa categories. The E-1 is the Treaty Trader category and the E-2 is the Treaty Investor category. The E nonimmigrant category is somewhat different from some of the nonimmigrant visa categories previously discussed since the E nonimmigrant visa category is a creature of the U.S. Department of State.

The threshold determination as to whether or not the E nonimmigrant visa category is suitable is
(1) whether a Treaty of Commerce and Navigation for Trade and Investment (the name of the treaty may vary from country to country, e.g., the U.S. Treaty with Canada is known as the North American Free Trade Agreement ("NAFTA") exists between the United States and the country from which the foreign national seeks to come; and
(2) whether the foreign national coming to the United States is a national of the country that has the treaty with the United States.

Whether an individual and/or an organization qualifies for treaty-trader status can be determined by examining whether an appropriate treaty exists between the U.S. and the foreign national's country of origin. Some treaties of commerce and navigation between the United States and a foreign country only confer E-1 treaty-trader status, while other treaties of commerce and navigation confer treaty investor and treaty-trader status. This information can be obtained from the FAM.

Additionally, since U.S. diplomacy is an extremely dynamic field, it is important to ensure that the client is being provided with the most up-to-date information about the possibility of obtaining E-1/E-2 nonimmigrant visa classification.

The E-1 nonimmigrant treaty-trader visa is available to "an alien entitled to enter the United States under and in pursuance of the provision of a treaty of commerce and navigation between the United States and the foreign state of which he [she] is a national solely to carry out substantial trade principally between the United States and the foreign state of which he [she] is a national." 8 USC 1101(a)(15)(E)(i).

Thus, the elements of the E nonimmigrant visa classification are clear. First, the E-1 nonimmigrant visa category is governed by a treaty between the U.S. and the foreign country. Next, the treaty must be one that contemplates E-1 nonimmigrant visa status. The foreign national seeking temporary entry into the United States must be a national of the foreign country with which the U.S. has the treaty of commerce and navigation. The foreign national must be coming to the United States to carry out "substantial trade". The "substantial trade" must be principally between the United States and the foreign state of which the intending treaty-trader is a national.

While the elements of the E nonimmigrant visa classification may seem to be clear, the "gray areas" often encountered lie in the definitions of (1) what is considered to be "trade"; and (2) what is considered to be trade that is "substantial"; and/or (3) what is considered to be trade that is "principally between" the United States and the foreign state.

"Trade" is defined as trade of a substantial nature and which is international in scope, carried on by the foreign national in his/her own behalf or as an agent of a foreign person or organization engaged in trade, and which is principally between the United States and the foreign state where the foreign national is from. "Substantial" means that at least fifty-one (51%) percent of the international trade must be between the U.S. and the foreign state.

While the regulatory guidelines are not meant to exclude small commercial organizations from obtaining this nonimmigrant visa categorization, it is clear how smaller commercial entities or entities without an established track record may find it difficult to meet the legal criterion governing this nonimmigrant visa category.

In the past, it was required that "substantial trade" be demonstrated by a showing of a flow of tangible physical goods or funds between the U.S. and the foreign state. However, changes to the regulations were liberalizing and brought the E nonimmigrant visa regulations in-line with commercial reality (e.g., multinational information technology organizations had difficulty proving the tangible flow of goods when they were engaged in the transfer of intangible data). The regulations now permit organizations to demonstrate "substantial trade" by way of a flow of intangibles such as consulting services between the U.S. and the foreign state.

From a purely practical standpoint, no substitute exists for preparing easy to read and understandable documentation for the reviewing officer (either USCIS or a Consular Officer) that explains that there is, and that there has been (for a durational track record), a substantial flow of tangible and/or intangible goods or services between the United States and the foreign state.

The foreign national who wishes to come to the United States with an E-1 visa must be engaged in the duties of a supervisory or executive nature or, if he/she will be employed in a minor capacity for the organization, that he/she has "specialized knowledge" or the specific qualifications that will make his/her services "essential" to the efficient operation of the employer's enterprise or to an individual who manages a particular function within the organization.

The E-1 nonimmigrant visa classification is governed by treaty and, generally, the durational limitations on this visa are reciprocal. The visa that is placed into the passport of the foreign national at the U.S. Consulate Office is generally accorded the same time limitations that are afforded to U.S. citizens seeking similar entry to the foreign state under the same treaty. However, each admission (provided by the USCIS/BCBP Officer at the POE on the Form I-94, Arrival/Departure Record) is given for two years. There are no specific time limitations for an E-1 nonimmigrant visa; however, the foreign national must demonstrate nonimmigrant intent in order to secure E-1 nonimmigrant visa classification.

The E-1 nonimmigrant visa may be obtained by making an Application directly to the U.S. Consulate Office, or an application may be made to one of the Regional USCIS offices. Obviously, whether the application is made to the USCIS or to a U.S. Consulate Office abroad will be governed by numerous strategic legal considerations including, but not limited to:
(1) whether the foreign national is in the United States in some other nonimmigrant visa category;
(2) how quickly the E-1 nonimmigrant visa needs to be processed (timing);
(3) whether the USCIS will more liberally interpret and apply DOS guidelines and interpretations to the E-1 nonimmigrant visa application.

Different forms and procedures shall apply depending upon whether application is made to the USCIS or to a U.S. Consulate Office abroad.

The E-2 "Treaty Investor" visa is available to a foreign national who is entitled to enter the United States under and pursuant to the provisions of a treaty of investment between the United States and a foreign state of which he [she] is a national "solely to develop and direct the operations of an enterprise in which he has invested, or an enterprise in which he is actively in the process of investing, a substantial amount of capital . . ." 8 U.S.C. 1101(a)(15)(E)(ii).

Similar to the provisions of the E-1 "treaty trader" visa, the E-2 "treaty investor" visa is controlled by treaty. The treaty investor must be coming to the U.S. for the purpose of managing a "substantial investment". The E-2 visa applicant can be the investor himself or the employee of a foreign person or organization who has the nationality of the treaty country. The treaty investor must have a controlling interest in the investment.

In the case of established, ongoing investments, the determination of what is "substantial" is based upon the proportion that the investment has to the entire value of the investment. Generally, the investment should be over one-half (1/2) of the value of the investment in the entire enterprise, however, where the investment is being examined in a large scale enterprise, less than half of the entire value of the investment may be considered to be "substantial". In the case of an investment in the process of being made, it is critical to demonstrate that the foreign national is "actively engaged" in the process of investing. It is important to note that the nature of the investment will be scrutinized by the appropriate authorities.

The investment activity should be able to pass the "smell test". The public policy underpinnings for the E-2 visa category are that the U.S. government seeks to encourage foreign nationals of certain countries to come to the U.S., for a temporary period, to establish, promote and train domestic workers in commercial ventures which shall continue to grow and create more jobs for U.S. workers and individuals who are lawfully permitted to work in the U.S.

Thus, an individual who seeks entry to the U.S. in E-2 nonimmigrant visa status by purchasing a house that he/she will live in, is unlikely to be deemed to be a treaty investor (furthermore such a purchase would contravene the foreign national's nonimmigrant intent). However, if it can be demonstrated that a residential real estate purchase is part of an ongoing acquisition of real estate assets that are part of a business operation of the treaty investor, then the possibility of obtaining an E-2 may be more likely.

Family members of the E visa beneficiary are accorded derivative E visa status. As derivative E visa holders, the immediate family members of the E visa holder may accompany the E visa holder to the United States. Derivative E visa holders can, under certain circumstances, study in the United States. The derivative E visa holders spouse can obtain work authorization by filing an application for work authorization with the CIS in the U.S..

As with the E-1 "treaty trader" visa, no preliminary petition is required for an E-2 "treaty investor" visa. Applications may be made directly to the U.S. Consulate Office abroad. It is important to check with the particular Consulate Office prior to submission of the E-1 or E-2 nonimmigrant visa applications: each U.S. Consulate Office may have its own treaty trader procedures which may include a specialized "treaty trader questionnaire," to be submitted in addition to the required supporting documentation concerning the "investment" or the activities which constitute the "substantial trade".

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