E-1/E-2 Treaty Trader & Investor Visas

The E-1 Treaty Trader visa allows foreign nationals of treaty countries to come to the United States to engage in trade. To be eligible for the E-1 treaty trader, the law requires that:

The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by national of the treaty country).

There must be a substantial trade (more than 50 percent) between the United States and the country of nationality. Trade includes the exchange, purchase or sale of goods or services or the transfer of technology, or binding contracts which call for the exchange of trade. To be substantial the trade must entail a continuous flow and numerous transactions over time are more important than large transactions.

The individual is either the principal trader, who is coming to the U.S. to engage in substantial trade, or an executive, manager or employee with special skills essential to the company.

Trade must be significant, which means a continuing flow or exchange of items, or that the income derived from trade is sufficient to support the Treaty Trader and family. Evidence of trade should include documentation of qualifying transactions, schedules of total trade, financial statements, annual reports, product/service brochures, etc.

The trade must be existing at the time of the application.

E-2 Treaty Investor visas are available to persons entering the US “solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital.” E-2 non-immigrant visas are available to foreign-owned businesses if the home country of the business owners has a treaty with the US that allows American businesses to operate in that home country. At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the US and the home country have a ratified bilateral investment treaty. Employees of the enterprise who are working in management, executive or “essential” positions are eligible for the visa if the ownership breakdown meets the above test, and the employee is a national of the treaty country. Some of the most important requirements for an E-2 visa include the following:

The investment must be active, not passive. This means that the money invested must be used to produce a real commodity or service. For example, an investment in land would not be considered active, but if the investment was accompanied by submission of development plans to authorities and contracts for building, it would be active. Both the USCIS and State Department allow the use of an escrow account to protect the applicant in case the visa is denied, but other evidence showing the investment will be active must be presented. The investor must manage the business and exercise a controlling interest in the business.

The investment must be substantial. While “substantial” is not defined by any particular dollar amount, both the USCIS and the Department of State use one of two tests to see if this requirement is met. They require either that the amount invested be proportional to the total value of the business, or that it be an amount typically considered necessary to establish a viable business in the field. The USCIS and State Department sometimes use a sliding scale that they are allowed to reference in determining whether an investment is “substantial.”

A newly created business might need a relatively low cost figure such as $50,000 to start but a higher percentage such as 90-100%

A business costing $100,000 might require an investment of 75-100%.

A small business costing $500,000 would demand generally upwards of a 60% investment, with a $375,000 investment clearly meeting the test.

In the case of a $1 million business, a 50-60% investment would qualify.

A business requiring $10 million to purchase would require a much lower percentage

An investment of $10 million in a $100 million business would qualify.

The investment cannot be marginal. The State Department will look at whether the investment will generate more funds than just enough for the owner to make a living and whether the investment will create jobs.

The capital to be invested must be irrevocably committed by the investor and at risk of partial or total loss if the enterprise fails. The investment may include money, fixtures, equipment and other assets. The investor must have possession and custody of the capital invested

The E visa applicant must be an actual investor in U.S. business, have an executive or supervisory position in the U.S. business, or possess skills essential to the U.S. business.

The E visa applicant must have nonimmigrant intent – that is, they must intend to depart the US after their authorized period of stay is over. However, unlike other most other nonimmigrant visa categories, this requirement can be met if the alien simply provides the consulate with a statement indicating non-immigrant intent.

Applications for E visas are made directly to the consulate and not through the USCIS unless the applicant is in the US in another visa status and seeks to change to an E-2 visa. Each consulate has its own version of an E visa questionnaire form and most require extensive documentation to support application. The length of time for which the visa will be issued is determined by agreements between the US and the treaty country. Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E status. E status in the U.S. is granted in 2 year increments. Spouses and children of Es are entitled to visas as well and employment authorization.

The required information is set forth in the following checklist.

E-Visa Checklist

INFORMATION ABOUT U.S. OPERATIONS

Copies of passports of majority shareholders from treaty country

Articles of Incorporation and certificate from state

Bylaws

Stock certificates

Certificate of Officers

Business license

Certificate of Qualification of Foreign Business

Partnership agreement or Joint Venture agreement

Receipts for equipment, supplies

Bank account statements showing capitalization

Loan agreements, if any

Copies of advertisements, press releases, etc., about new office

Trade references

Licenses, if required for type of business or profession

Copies of telephone bills re: international calls to treaty country

Sample contracts with customers/clients; invoices re transactions

Letters of credit

Business plan re: projected revenues, costs, staffing

Letters from chambers of commerce, trade commissioners, home office re: amount of initial investment as “substantial” and reasonable for start up of this type of business

Lease or deed to office/facility space

Trade or professional association memberships

Awards, certificates

PR releases

Marketing brochures/firm résumé

Photos of facilities, products, etc.

Organizational chart re: employees; projected organization

Customer/supplier list

Relevant patents, trademarks, copyrights, if any

Statistics re: volume and amount of trade between U.S. and treaty country (past performance and projected)

INFORMATION ABOUT ALIEN

Résumé

Copies of diplomas, degrees and relevant transcripts

Verification of relevant employment in U.S. and abroad: Exact dates of hire; job title, job duties, location within organization, number, type of employees supervised. Optional: info about employer, recommendation about alien’s performance.

Membership in trade or professional societies

Articles written about or by alien

Awards or commendations received

Number and type of employees supervised before and in future