U.S. IMMIGRATION SYSTEM | NON-IMMIGRANT | E-1 aND E-2
Treaty Traders and Investors
The E visa permits an individual or certain employees of a qualifying entity to enter the U.S. to carry on "substantial trade” between the U.S. and the country of which they are nationals. This visa is also given to investors or certain employees of a qualifying entity to enter the U.S. to develop and direct the operations of an enterprise in which the qualifying investor or entity has invested or is in the process of investing “a substantial amount of capital.” The E visa is only granted to nationals of countries with which the U.S. has entered into a Treaty of Friendship and Commerce or a Bilateral Agreement. The E visa can be used by companies owned by a single investor, as well as by large multinational companies. It is also available to key foreign personnel of companies that are foreign owned within the requirements listed below. Traders and Investors can remain in the United States indefinitely, as long as they maintain their eligibility and the treaty status continues.
The E-1 Visa
To qualify for an E-1 visa, a foreign businessperson must be seeking entry into the United States to carry on “substantial trade in goods or services in a capacity that is supervisory or executive or involves essential skills.” E-1 visas were previously restricted to a trade of goods and specific services, including banking, finance, and the airline industry. This limited definition of services has been greatly expanded so that trade can be in goods or services without specification or restriction.
The term “trade” means exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities with an output other than tangible goods. Such service activities include, but are not limited to, banking, insurance, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer. As a foreign citizen, you may be issued a Treaty Trader (E-1) nonimmigrant visa if all of the following requirements are met:
- You or your firm are foreign (at least 50% of the company stock is owned by nationals of the treaty country).
- You enter the United States to carry on substantial trade (51% or more) between your U.S. business and the country of which you are a national; it does not matter if your foreign company is engaged in trade with countries other than the United States (new regulations, yet to be published are expected to define “substantial trade” making it more restrictive).
- The trade is already in existence at the time you apply for E-1 status.
- You engage in executive or managerial duties or possess essential skills that make your services essential to your employer’s operations.
- You confirm that you will leave the United States upon termination of this status.
The E-2 Visa
To qualify for an E-2 visa, the applicant must “develop and direct the operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital.” As a foreign citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met:
- You and your firm are foreign (at least 50% of the company stock is owned by nationals of the treaty country).
- You or the firm for which you work will invest or have invested substantial capital, which means that a significant proportion of the total investment is being made.
- Capital invested must be at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States.
- You engage in executive or managerial duties or possess essential skills that make your services essential to the employer’s operations.
- The investment is not your sole means of support; and ideally, the investment creates jobs for U.S. workers.
- The investment enterprise actually exists or you are actively in the process of investing.
- You confirm that you will leave the United States upon termination of this status.
The Investment - General Requirements
- The required capital amount must have been invested after November 29, 1990 or the alien must be “actively in the process of investing” at the time the visa is obtained;
- The minimum required capital for the investment is $1 million;
- The amount of investment required for a “targeted employment area” is $500,000; and
- The Attorney General may define high employment areas in which the minimum investment required may be $3 million.
Investment in Targeted Employment Areas
- At least 3,000 of the investment visas are reserved for aliens investing in new commercial enterprises which create employment in targeted employment areas.
- “Targeted employment area” is defined as:
(i) An area which has experienced unemployment of at least 150% of the national average;
or
(ii) A “rural area,” which is
(1) An area outside of a metropolitan statistical area; or
(2) A city or town having a population of under 20,000.
- Amount of investment required: no less than $500,000.
Termination of Immigrant Investor Status
An Immigrant Investor can lose that status if the USCIS determines within two years that:
- The enterprise was established solely to evade the immigration laws of the United States;
- A commercial enterprise was not in fact established by the alien;
- The alien did not invest the requisite capital;
- The alien did not sustain the investment activities required during the period of the alien’s residence in the United States.
Application Process
To apply for a Treaty Trader (E-1) or Treaty Investor (E-2) visa, the applicant must first establish that the trading enterprise or investment enterprise meets the requirements of the law. There are special forms we use for the application which depend upon where the applicant will be applying. This may be in the U.S. or at the U.S. Consulate or Embassy in the applicant's home country.
Time Considerations and Duration of Stay
It may be possible to obtain an E visa within a matter of weeks, depending upon the time necessary to prepare the application. The visa itself may be issued for a period of up to five years valid for multiple entries; however, when the applicant enters the U.S., he or she is allowed to remain for one year subject to annual extensions or departure and re-entry. Spouses and children of any nationality may receive derivative E visas in order to accompany the principal alien but are not authorized legally to work in the U.S. As long as the treaty remains in force and the trade of investment continues, the successful applicant may remain indefinitely in the U.S.
The E visa is an attractive alternative to the green card for entrepreneurs and others who cannot qualify for long-term residence in the U.S. based upon employment or family. |
