Treaty Trader / Investor
INA §101(a)(15)(e), 8 CFR §214.2(e)(8)(ii)
E-1 (Treaty Traders) and E-2 (Treaty Investors) are non-immigrant work visas available to companies and individuals from specific countries that have diplomatic treaties and reciprocal trade agreements with the U.S. The E visa classification dates back to the early 1800s and is the product of complex diplomatic relations and a rich history of cooperation and mutual economic growth and development between the U.S. and other nations.
Click for List of E Visa Countries
While the legal requirements for qualification are standardized based on regulations, the duration of the visa, the documentary requirements and application processes are country specific based on the practices and preferences of the U.S. Embassies abroad as well as the Country Specific Treaties governing the E-1/E-2 association. Companies and Individuals considering E-1 / E-2 visas should be sure to consult with an experienced attorney.
The E-1 and E-2 Treaty Trader / Investor visas can be highly advantageous for companies and individuals with qualifying treaty country nationality. One of the strongest benefits of E visas is they can be renewed indefinitely if the qualifying organization maintains its E visa status and qualification. Another major advantage is that the spouses of E visa holders can apply for US work authorization.
The greatest limitation of E visa classification is that it is only available to U.S. business organizations that are majority owned and controlled by a foreign corporation (or individual) that is the nationality of a treaty country. Furthermore, the Beneficiaries of E visas must also share the treaty country nationality. Finally, E visas are only available to Beneficiaries coming to the U.S. to work in an executive, managerial or specialty skills position.
The trader / investor (company or individual) must:
- Be a national of the Treaty Country; if the investor is a corporation then “corporate nationality” is based on ownership (51% of owners must be from the Treaty Country);
- Have already invested or be in the process of investing in a U.S. for-profit business;
- Have control over the investment funds; and,
- Be in a position to “develop and direct” the enterprise.
The investment must be:
- To a real and operating enterprise – speculative, idle investments or uncommitted funds in a bank account are not considered an investment;
- Substantial – it must be large enough to ensure the successful operation of the enterprise (in this way it is dependent on the business);
- It 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 economic impact in the United States; and,
- “At risk” – cannot be collateralized in loans.
If the applicant is not the principal investor / trader (if the qualifying organization is a company), he or she must be employed in a supervisory, executive, or highly specialized skill capacity – ordinary skilled and unskilled workers do not qualify.
In order to qualify and secure E visas, the sponsoring organization (corporation or individual) must first register with the U.S. Embassy abroad. Once the registration is approved, each applicant can apply for the E visa via the standard visa interview processing at the U.S. Embassy or Consulate abroad.
Company registration processing times and procedures and individual visa wait times vary greatly depending on the Embassy, so it is important to plan ahead and work with an experience immigration attorney to secure the company registration and visas successfully.
Beneficiaries of E visas may be joined by their qualifying dependents (spouses and children). Qualifying dependents would apply for dependent E-1D / E-2D visas and upon entrance into the U.S. are eligible to apply for work authorization.
The E visas are non-immigrant in nature and applicants must demonstrate intend to depart the United States when the E visa ends. However, there are no time limitations on the total duration of E visa status and the visa can be extended in discrete increments indefinitely, assuming the qualifying relationship and nationality exists.
Dual-Intent and Future Green Card Applications
E visas are non-immigrant in nature do not enjoy the benefit of “dual intent”, which means that foreign nationals who enter the U.S. in E visa status cannot apply for Lawful Permanent Residence (“green card”) immediately upon entry without subjecting such an application to scrutiny regarding the possibility of fraudulent intent when they entered as a non-immigrant. It is possible to file a green card case while on E visa status, however, timing is absolutely critical. In order to protect the non-immigrant status and a green card application travel and entries into the U.S. should be carefully monitored in association with the progress of the green card application.
Additionally, because E visas are governed by diplomatic treaties, applicants for Lawful Permanent Residence must file additional green card paperwork to waive diplomatic ties at the time of the green card filing.
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