Moore & Van Allen Law Firm, Attorneys

E-1/E-2: TREATY TRADER / TREATY INVESTOR

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E-1/E-2: TREATY TRADER / TREATY INVESTOR

E-1 (treaty trader) and E‑2 (treaty investor) visas are issued pursuant to bilateral treaties of friendship, commerce and navigation between the United States and various other countries. Most Western European countries are parties to such treaties with the U.S. These treaties provide that the nationals of the treaty country involved may live and work in the United States for employers sharing their nationality in certain specified capacities. The E visa is the statutory means whereby these treaty provisions are made effective.

E-1 and E-2 visas require that both the employing company and the individual applicant meet certain eligibility requirements. For the U.S. company to qualify, it must have the same nationality as a U.S. treaty partner, i.e., it must be at least 50% owned by a company which is owned by treaty country nationals or it must be at least 50% directly owned by treaty nationals who are not lawful permanent residents of the U.S.  The individual applicant must be of the same nationality as the ultimate owners of the U.S. company, i.e., must be of the same nationality as the treaty partner.

For example, the U.S. subsidiary of a British owned corporation may seek E visas only for British nationals. Employees coming to the U.S. of other nationalities would have to seek an alternative visa classification such as H-1B or L-1.

The two subcategories of E visas differ in the eligibility requirements. In the case of the E‑1 (a treaty trader) visa, the U.S. company must document that it is engaged in “substantial trade” between the U.S. and the treaty country. Substantial trade does not refer so much to a dollar level of trade as to regular and frequent trade in goods or services. The trade between the U.S. and the treaty country must account for more than 50% of the U.S. company’s trading revenues.

In the case of the E‑2 (treaty investor) visa, the foreign parent (whether company or individual investors) must have made a “substantial investment” in the U.S. company. The term “substantial investment” escapes precise definition and no minimum dollar amounts have been set. However, the State Department does define substantial investment as a bona fide or real, active commercial or entrepreneurial undertaking, which produces a service or commodity, rather than a marginal enterprise. The U.S. company must employ some U.S. workers. 

The State Department also uses a proportionality test, which weighs the investment against the total value of the business or the usual amount needed for successful similar businesses to determine whether a substantial investment has been made. Small‑ and medium‑sized businesses should generally plan to invest at least half of the value of the business or the usual amount required to start up similar businesses. Investment funds may be borrowed so long as the investor (and not just the U.S. subsidiary) is liable for the debt. 

An individual applicant for the E visa is not required to have employment experience within the sponsoring company’s foreign operations, however the applicant must be coming to the U.S. to serve in an essential skills role or a role that is executive, managerial, or supervisory in nature. The executive and manager classifications require broad discretionary authority over either the entire operation or a distinct division of the company, or supervision of employees. An essential skills employee should have special qualifications that make the services s/he will render essential to the efficient operation of the enterprise. 

The process for E visa issuance is completed by the U.S. Embassy/Consulate in the applicant’s home country and does not require prior approval of a nonimmigrant visa petition (I-129) by USCIS. The application is submitted directly to the Embassy/Consulate and the applicant is appears for an interview. While this can mean a more expedited process than the I-129 process in the U.S., the absence of a “pre‑approval” can result in Consular officers heavily scrutinizing these applications to ensure all criteria are met. Documentary requirements can be quite rigorous, particularly when the U.S. company seeks E visa corporate registration for the first time.

The E visas potentially allow for an indefinite duration of authorized stay in the United States. The visas themselves are usually issued for a period of five years or less. However, there is no statutory limitation on the time one may stay in the U.S. in E status. Thus, the visa may be renewed for similar terms indefinitely so long as conditions of eligibility continue to be met.

Family members of E visa holders (specifically spouses and children under age 21) may be granted E dependent visas to accompany the worker to the U.S. While dependent children are not eligible to work in the U.S. pursuant to this status, E-2 dependent spouses are eligible to apply for work authorization once they arrive in the U.S.