These visa categories are available to qualified nationals of countries with whom the United States has treaties of commerce, friendship, navigation and trade and who intend to come to the U.S. in order to carry out international trade (E-1 Treaty Trader) or to develop and direct an operation in which the individual has invested or is in the process of investing a substantial amount of capital (E-2 Treaty Investor).
At a minimum, majority ownership or control of the U.S. company must be held by the treaty trader or the treaty investor.
E-2 Treaty Investor Visas
The E-2 Treaty Investor Visa is designed for the small business person and is intended to allow foreign nationals to come to the U.S. and own a business. It is not to be confused with the EB-5 Immigrant Investor Visa which normally requires an investment of at least 500,000.00 and will grant the investor a green card. The E-2 visa on the other hand is a temporary visa and only valid as long as the underlying business is valid.
- The investor, either a real or corporate person, must be a national of a treaty country.
- The investor must be coming to the U.S. to develop and direct the enterprise and to create jobs for U.S. workers, not just to be self-employed. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
- The investor must have the necessary funds in his control. In this respect control is considered to entail owning over 50% of the U.S. enterprise.
- The investor must demonstrate that he received these funds by legitimate means.
- The funds must be irrevocably committed to the business enterprise. Mere intent to invest or just having a big enough bank account to indicate the availability of funds, or loans secured with the assets of the investment enterprise are not sufficient. However, a loan secured by the investor’s personal assets, would be.
- The investment must be at risk in a real operating enterprise. Speculative or idle investment does not qualify.
- The investment must be substantial. This means that it must be sufficient to ensure the successful operation of the enterprise. There is no specific cash threshold defined, but any investment below $100,000 would need a very strong case to support it, although this does not mean that anything over $100,000 is guaranteed an approval. The purpose of the substantiality requirement is to ensure that the business is not speculative and that, soon enough, it will be successful. In determining what is substantial, a two tier proportionality test is applied. The amount invested is weighed against either: The total value of the enterprise, usually where a running business is bought; or the amount normally needed to establish a viable enterprise. In addition, it is understood that the percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
- The investment may not be marginal. This means that the investment must have the present or future capacity to generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
E-2 visas can be granted for a period of up to five (5) years and can be extended indefinitely. There is no limit on how many extensions one can obtain, as long as the applicant continues to operate a viable business in the U.S. The E-2 is an “employer-specific” visa, which allows the applicant to work only for the sponsoring business.
To find out whether your country is “treaty country” please click here.
An employee of a treaty trader or treaty investor with the same nationality as the principal foreign employer may also be classified as an E-1 or E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or if employed in a lesser capacity, the employee has special qualifications that make his or her services essential to the efficient operation of the enterprise. With limited exceptions, it is presumed that employees of treaty enterprises with special qualification who are responsible for start-up operations should be able to complete their objectives within two years. Absent special circumstances, such employees will not be eligible to obtain an extension of stay.
In determining whether the skills possessed by the alien are essential to the operation of the employing treaty enterprise, USCIS will consider, when applicable:
- The degree of proven expertise of the alien in the area of the operations; whether others possess the applicant’s specific skill or knowledge; the length of the applicant’s experience and/or training with the treaty enterprise; the training or other experience necessary to perform effectively the projected duties; the relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command. Knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement.
- Whether the skills and qualifications are readily available in the United States. Skills that are essential to start up an enterprise may no longer be essential after the initial operations are complete and running smoothly. Some skills are essential only in the short-term for the training of locally hired employees.
Under certain circumstances, an applicant may be able to establish his or her essentially to the treaty enterprise for a longer period of time, such as in connection with product improvement, quality control, or the provision of services not yet generally available in the United States
The length of stay under the E-1 and E-2 visa categories is essentially open ended, as long as there is a need for the foreign national to direct and control the US enterprise with initial status of two (2) to five (5) years. Thereafter, the E visa holder has to show that the trade or investment activity is continuous and ongoing. The consulate may grant treaty trader or treaty investor visas for up to five years, but even with a five year visa, the foreign national is only given treaty status upon entering the United States in two year increments.
Spouses and children
The spouse and unmarried children under 21 years of age are entitled to E classification. The spouse is entitled to work authorization, but not the children. To apply for work authorization as a spouse of an E-1 or E-2 nonimmigrant, the spouse may file a Form I-765, Application for Employment Authorization.
Unlike the other non-immigrant work classifications, treaty trader or treaty investor status may be initiated either directly at an American Consulate outside of the United States or in the U.S. with the U.S. Citizenship and Immigration Services (CIS) if the individual is in legal status and the law permits a change in status. However, once the individual leaves the U.S., the individual must apply for an E-2 visa at an American Embassy or consulate.
Our office will review your business plans and operations to determine eligibility for an E visa and prepare all necessary applications, petitions and documentation to successfully apply for this visa category. Through our affiliates, we can also assist you with organizing and setting up your US business entity, negotiating for the purchase of a US company, and any other business transaction needs you may have.
For assistance with the preparation and filing, or extension of an individual or entity E-treaty application, please contact us. We understand the importance of successfully obtaining an E-1 or E-2 visa and will help you navigate the E visa process. E visas require a deliberate strategy, careful attention to detail, and strong communication. With these elements in place, the process is often easier and less stressful than many of our clients expect.