E-1 and E-2 Visas for Traders and Investors
The United States signs treaties with other countries, which treaties are designed to promote trade and investment between the U.S. and the other country or countries, thereby encouraging good relations and peace. More recently the U.S. has signed a number of Bilateral Investment Treaties with mainly former communist states, designed to promote investment but not generally conferring any trade-related immigration privileges. Nationals (individuals or companies) of countries with such Treaties with the United States can obtain visas to work in the USA in order to develop and direct their investment in and/or trade with the U.S. Such visas are called E-visas, and come in two types: E-1 treaty trader visa is set aside for companies that trade goods and services, while the E-2 investor visa is for an individual or enterprise that invests a substantial amount of funds in the United States with the prospect of job creation. The E visa can be used by companies owned by a single investor, as well as by large multinational companies. It is also available to key foreign personnel of companies that are Treaty Foreign National (TFN) owned within the requirements listed below. TFNs are from the following countries:
The E-1 Trader Visa
To qualify for an E-1 trader visa, a foreign business person must be seeking entry into the United States to carry on “substantial trade in goods or services in a capacity that is supervisory or executive or involves essential skills.” E-1 visas were previously restricted to a trade of goods and specific services, including banking, finance, and the airline industry. This limited definition of services has been greatly expanded so that trade can be in goods or services without specification or restriction. The term “trade” means the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include but are not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer. As a TFN, you may be issued a treaty trader (E-1) nonimmigrant visa if all of the following requirements are met:
- You or your firm is a TFN (at least 50% of the company is owned by TFNs);
- You enter the United States to carry on substantial trade (more than 50%) between your U.S. business and a TFN country; it does not matter if your TFN company is engaged primarily in trade with countries other than the United States, if the U.S. business in a separate legal entity (e.g. not a branch office of the foreign entity).
- The trade is already in existence at the time you apply for E-1 status; existing trade includes successfully integrated contracts binding upon the parties which call for the immediate exchange of trade items;
- You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations; and
- You confirm you intend to depart the United States upon termination of this status.
The E-2 Investor Visa
To qualify for an E-2 investor visa, the applicant must “develop and direct operations of an enterprise in which he or she has invested or is actively in the process of investing a substantial amount of capital.” As a foreign citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met:
- You or the firm are TFNs (at least 50% of the company is owned by TFNs);
- You or the firm for which you work will invest or have invested substantial capital (generally in excess of $100,000) which is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States. The term “substantial” means:
- The investment must be significantly proportional to the total investment (usually more than half of the value of the business), or
- An amount normally considered necessary to establish a new business.
- You engage in executive or managerial duties or possess special skills that make your services essential to the employer’s operations.
- An executive position provides the employee great authority to determine the policy of and direction for the business or a major component of the business. The executive functions must be the primary functions of the employee, and not just incidental or collateral to other duties.
- A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise’ operations or a major component of the enterprise. It does not involve the supervi
sion of low-level employees. The supervisory element of the employee’s position must be a principal and primary function, and not an incidental or collateral function.
- The essential nature of a foreign national’s “special skills” is determined by assessing the degree of proven expertise of the foreign national in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the contemplated duties, and the salary the special expertise commands. The consular officer must be convinced that the nature of the respective employment is such that the foreign national’s eventual replacement by a U.S. worker is not feasible or that the employer is making reasonable and good-faith efforts to recruit and/or train U.S. workers to perform the job.
- The investment is not marginal (not your sole means of support and/or the goal of the investment is to create jobs for U.S. citizens or permanent residents).
- The investment enterprise actually exists or you are actively in the process of investing
- You confirm you intend to depart the United States upon termination of this status.
Notes regarding E1/E2 Lists of Countries
- CHINA (TAIWAN) – Pursuant to Section 6 of the Taiwan Relations Act, (TRA) Public Law 96-8, 93 Stat, 14, and Executive Order 12143, 44 F.R. 37191, this agreement which was concluded with the Taiwan authorities prior to January 01, 1979, is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan.
- CZECH REPUBLIC AND SLOVAK REPUBLIC – The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992; entered into force for the Czech Republic and Slovak Republic as separate states on January 01, 1993.
- DENMARK – The Treaty which entered into force on July 30, 1961, does not apply to Greenland.
- FRANCE – The Treaty which entered into force on December 21, 1960, applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion.
- JAPAN – The Treaty which entered into force on October 30, 1953, was made applicable to the Bonin Islands on June 26, 1968, and to the Ryukyu Islands on May 15, 1972.
- NETHERLANDS – The Treaty which entered into force on December 05, 1957, is applicable to Aruba and Netherlands Antilles.
- NORWAY – The Treaty which entered into force on September 13, 1932, does not apply to Svalbard (Spitzbergen and certain lesser islands).
- SPAIN – The Treaty which entered into force on April 14, 1903, is applicable to all territories.
- SURINAME – The Treaty with the Netherlands which entered into force December 05, 1957, was made applicable to Suriname on February 10, 1963.
- UNITED KINGDOM – The Convention which entered into force on July 03, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands and Gibraltar) and to “inhabitants” of such territory. This term, as used in the Convention, means “one who resides actually and permanently in a given place, and has his domicile there.” Also, in order to qualify for treaty trader or treaty investor status under this treaty, the alien must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United Kingdom do not qualify for treaty trader or treaty investor status under this treaty.
- YUGOSLAVIA – The U.S. view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY – Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Slovenia, and the Federal Republic of Yugoslavia continue to be bound by the treaty in force with the SFRY and the time of dissolution.
Please check with the State Department website for recent changes.
How To Apply
Trader and investor visas must be applied for at a U.S. Consulate with a visa application. An interview is conducted by a U.S. Consul, who is well versed in the rules and regulations pertaining to E visas. For the correct forms and the time for adjudication of your E visa application, check with the U.S. consulate where you intend to apply.
Duration of the Visa
E visas are generally issued for a five-year period and can be reissued (formerly called revalidation) through a U.S. Consulate or Embassy for a time equal to that originally issued. Admission for each entry to the United States during the life of the visa (recorded on the I-94) is granted for a period of two years. Extensions may be obtained for up to two years at a time from the Citizenship and Immigration Services’ Service Center having jurisdiction over the place where the business is located. Traders and investors can remain in the United States indefinitely, so long as they maintain their eligibility and treaty status.
Status of Spouse and Minor Children
A spouse and unmarried minor children are eligible for E visas, and can also enter under this category; a spouse can apply for work authorizations after entry. Unauthorized employment will not cause their deportation, as in the case of a spouse or child who holds a B, TN, or H visa, and in addition, servants of the E visa holder can be issued B-1 visas with work authorization.