Treaty Traders and Investors

Foreign nationals who wish to come to the U.S. to engage in international trade or to direct and operate a business investment may do so if they are citizens of a country that has entered into a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent with the United States using the E visa.  This is a temporary, non-immigrant visa that may be obtained from overseas at the U.S. Embassy or consulate through consular processing or from U.S. Citizenship & Immigration Services if the foreign national is filing from within the U.S. for an extension or a change of a status.

The list of qualifying treaty countries can be found on the U.S. Department’s website, which currently can be accessed here.  Eligible visaholders may enjoy their E visa status for two years at a time, to be renewed in two year increments for an indefinite number of times, provided they continue to meet the visa requirements.

E-1 Treaty Traders

E-1 Treaty Traders are either traders coming to the U.S. to carry on a trade of a substantial nature for him/herself, someone else, or for an organization engaged in trade, or as an alien employee of a treaty trader coming to the U.S. to assume an executive or a supervisory role or some essential function for the efficient operation of the trade enterprise. To qualify as an employee for E visa purposes the foreign national’s employer must be a national of a qualifying treaty country and must have at least 50% ownership in the business organization.

For the purposes of E-1 visa, trade means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other. Items that qualify for trade include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities. 

For the trade to be substantial there must be continuous trading activities between the United States and the treaty country, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.

E-2 Treaty Investors

E-2 Treaty Investors are foreign nationals coming to the United States to invest or to be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States for the sole purpose of developing and directing the enterprise.  E-2 status may also be granted to a qualifying employee of a treaty investor as long as the employer maintains his/her E-2 status and has at least 50% ownership of the organization.

A treaty investor must place personal capital (funds or other assets) at risk in the commercial sense with the objective of generating profit.  The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The invested funds may be placed in escrow pending visa issuance, that would not only irrevocably commit funds to the enterprise but that might also extend some personal liability protection to the treaty investor.

For the investment funds to be considered substantial a test of proportionality is used and  understood in terms of an inverted sliding scale; i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.  The investment funds would be considered in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration; the funds should be sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and the funds should be of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Marginal enterprises that do not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his/her family will not succeed in getting an E visa application approved.

Spouses and children of a treaty trader or investor may qualify for the same visa classification, regardless of their nationality (if different from the principal treaty trader or investor).  Spouses may also separately apply for work authorization.

While the visa is temporary in nature and the visa holder is expected to return to his/her home country when the E visa status terminates, a treaty trader or investor is not required to maintain a foreign residence abroad.

If you or someone you know is considering E visa as a possible immigration option, contact our office for a more in-depth analysis of your case.

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