Nonimmigrant Treaty Traders and Treaty Investors

The E visa is a nonimmigrant visa which allows the conduct of trade between the U.S. and another country with which the U.S. maintains a treaty of commerce and navigation, or the oversight of investment in the U.S. This category may be availed of not only by the company’s principals but also by its employees. The E trader, investor or an employee may also be accompanied or followed by their spouses and unmarried children below 21 years old, who need not be of the same nationality.

Although it is a nonimmigrant category which requires an intention to depart the U.S. at the expiration or termination of the status, after the initial period of two years the trader or investor can extend his stay indefinitely.

Treaty Traders (E-1)

An E-1 treaty trader is a national of a country with which the U.S. maintains a treaty of commerce and navigation who enters the U.S. solely to engage in international trade. Trade is defined as the existing international exchange of items of trade for consideration between the U.S. and the treaty country. It includes goods, services, international banking, insurance, transportation, tourism, technology and some news-gathering activities.

The trade carried on by the treaty trader must be substantial, meaning that it must be substantial. There is no definite dollar value to determine whether trade is sizable. On the contrary, the trade is measured by the volume of trade, the number of transactions, and the continued course of trade. Substantiality cannot be based on a single transaction no matter how monetarily valuable it is.

The trade must also be principally between the U.S. and the treaty country, i.e. more than 50% of the total volume of the trade must be between the two countries. Furthermore, the trade must be ongoing, meaning that the alien must meet the requirement not only at the time application or admission to the U.S. but also while the alien is in E-1 status.

Treaty Investors (E-2)

An E-2 treaty investor is one who is seeking to enter the U.S. to direct and develop a business in which he has invested, or is in the process of actively investing, a substantial amount of capital. Like the E-1 treaty trader, the E-2 treaty investor must also be a national of a treaty country.

For E-2 purposes, substantiality is determined by weighing the amount of funds invested against the total cost of purchasing or establishing the enterprise. It is an amount considered sufficient to ensure the investor’s financial commitment to the enterprise’s success. A higher proportion of investment is required of small businesses for the investment to be substantial.

The investment must be in a bona fide enterprise or one that is a real, active commercial or entrepreneurial undertaking. It may not be idle or passive investment, such as in stocks or undeveloped land. Furthermore, the E-2 investor’s investment cannot be marginal or solely to provide for himself and his family. A marginal enterprise is one that does not have the capacity at present or within five years to generate more than enough income for the investor and his family.

Employees

An employee of the E-1 trader and E-2 investor may qualify for the same classification if he is of the same nationality as the treaty employer and if the position is primarily executive or supervisory in character, giving the employee ultimate control and responsibility for the operation of the enterprise. If the employee is employed in another or lower capacity, to be eligible for E-1 or E-2 classification he must have special qualifications or skills essential to the operations of the business.