| E-1/E-2 Treaty Trader/Investor
In order to encourage global trade and investment, the United
States maintains treaties of friendship, commerce and navigation
with many countries around the world. The U.S. immigration
laws provide for two particular visas that put these treaties
into practice on U.S. soil. A national of a country that maintains
a treaty of friendship, commerce and navigation with the U.S.
may be eligible to apply for a visa to come to the U.S. to
carry on substantial trade between the U.S. and the treaty
country (E-1 visa) or to develop and direct a substantial
investment (E-2 visa).
In order to qualify for the E-1 Treaty Trader visa, the
"principal trader" must be coming to the United States solely
to carry on substantial international trade principally between
the U.S. and the treaty country of which the "principal trader"
is a national. Substantial trade is intended to be continuous,
contemplating numerous transactions over time. The trade must
exist at the time that the application for the visa is made.
Existing trade may consist of successfully negotiated contracts,
binding upon the parties, which call for the immediate exchange
of items of trade. Principal trade contemplates that over
fifty percent of the volume of the international trade be
carried on between the U.S. and the treaty country. The trade
can include goods and/or services. That the "principal trader"
must be a national of the treaty country means that either
the individual trader must be a citizen of the treaty country
or that at least 50% ownership of the company engaged in the
trade must be held by citizens of the treaty country.
In order to qualify for the E-2 Treaty Investor visa, the
treaty investor must have invested or be actively in the process
of investing a substantial amount of capital in a bona fide
enterprise in the Unites States. They must be seeking entry
solely to develop and direct the enterprise. A bona fide enterprise
for purposes of the visa is one that is a real, active and
operating commercial or entrepreneurial undertaking that produces
services or goods for a profit. The capital for the investment
must be placed at risk by the treaty investor in a commercial
sense with the objective of generating a profit. That means
that the money must be irrevocably committed to the treaty
enterprise and subject to a partial or total loss should investment
fortunes reverse. There is no minimum dollar amount for the
investment. However, the investment must be more than a marginal
one that exists solely to provide a living for the visa holder
and their immediate family. Both the State Department and
the INS have determined that even an investment of under $50,000
may be sufficient in a service enterprise where start-up costs
are relatively low and the principal "investment" is the knowledge
and skills of the employees. The treaty investor must demonstrate
that they will develop and direct the investment enterprise.
They must establish control over the enterprise by demonstrating
ownership of at least 50% of the enterprise and their position
must be principally executive or supervisory in nature.
Treaty investors and traders may also apply for their supervisory
or executive employees and/or employees who have special skills
that are essential to the successful or efficient operation
of the treaty enterprise.
Spouses and minor children of treaty investors or traders
may obtain derivative status to that of the principal treaty
alien. These family members need not be nationals of the treaty
country. Spouses in "E" status are currently eligible to apply
for employment authorization incident to their status. Minor
children are not eligible to receive employment authorization.
A treaty investor or trader may be admitted for an initial
period of no more than two years. Requests for extension of
stay may be granted in increments of not more than two years.
There is no specified number of extensions of stay that a
treaty trader or investor may be granted. As a result, a treaty
trader or investor and their spouses and minor children may
remain in such status indefinitely, provided that the treaty
enterprise continues to operate according to the requirements
of the visa and that the treaty trader or investor maintains
the intent to the depart the U.S. upon expiration of the visa.
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