E-1/E-2 — Treaty Traders And Investors

People coming to the United States under the terms of a reciprocal treaty to carry on substantial trade ( E-1) or to direct and develop investments involving substantial capital ( E-2) may be accorded status as an E nonimmigrant. If the applicant is not the principal investor or owner of the treaty-investment or treaty-trader company, he or she must be employed in an executive or supervisory capacity or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.

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E-1 or E-2 nonimmigrant status authorizes a person to remain in the U.S. only in connection with the management of or employment by the business that is the basis of his or her visa application. Thus, an E-1 or E-2 principal is not authorized to work in the U.S. for an employer other than the treaty company. Dependent spouses of E-1 or E-2 principals, however, are entitled to “open market” work authorization during the validity of the principal’s authorized period of stay. Both treaty traders and treaty investors must intend to depart when their statuses terminate. Nonetheless, holders of E visas may live in the United States as long as they continue to engage in activities consistent with their status. Many traders and investors properly remain in E status for years — even decades.

Treaty Requirement

E-visa classification is available only to nationals of countries that have entered into appropriate treaty agreements with the United States and who are seeking to enter the U.S. to develop and direct or otherwise accept qualified employment by a company controlled by nationals of the treaty country. Information regarding which countries have treaties that support E-1 and/or E-2 status is available on the State Department’s Visa Reciprocity Table.

E-1 Treaty Trader Classification

E-1 classification is available to a person coming to the United States solely to carry on “substantial” trade, including trade-in services or trade-in technology, principally between the United States and the foreign state of which he or she is a national. A pattern of many small-value transactions can suffice if substantial in the aggregate. More than half of the total volume of international trade conducted by the treaty firm, however, must flow between the United States and the treaty country.

Trade-in services for E-1 visa purposes may include banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism and technology transfer.

E-2 Treaty Investor Classification

E-2 classification is available to a person coming to the United States solely to direct and develop 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 used to describe the required investment, “substantial” indicates that the amount invested is sufficient to ensure the investor’s financial commitment to the successful operations of the enterprise and supports the likelihood that the investor will successfully direct and develop the enterprise. The substantiality of an investment is determined by the application of a “proportionality test.”

The E-2 investor must place lawfully acquired, owned and controlled capital at commercial risk with a profit objective and the invested capital must be subject to loss if the investment fails. Furthermore, a “marginal” investment that will return only enough income to provide a living for the applicant and his or her family will not support a successful E-2 visa application.

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