E-1 – Treaty Trader and E-2 – Treaty Investor Visas

Over the years, the U.S. has signed treaties with most of the other countries in the world, in particular treaties of “Friendship, Commerce and Navigation.” These treaties are designed to promote trade and investment between the U.S. and the other contracting state, thereby encouraging good relations and peace. The U.S. has also entered into a number of Bilateral Investment Treaties with additional countries, mostly former communist states.  These treaties are designed to promote investment but do not generally confer trade-related immigration privileges.

Nationals (individuals or companies) of countries with applicable Treaties with the U.S. are eligible to apply for E-1 Treaty Trade and E-2 Treaty Investor status to work in the U.S. in order to develop and direct their investment in and/or trade with the U.S.

Current information on eligible countries can be found on the State Department website at www.travel.state.gov

REQUIREMENTS FOR E-1 AND E-2

The E-1 Treaty Trader

Nationals of qualifying Treaty countries who undertake a significant amount of international trade with the United States may qualify for the E-1. The volume of such trade must be sufficient to justify the trader or his or her employee(s) being in the U.S. to manage the trade and must constitute the majority of the trader’s international trade (i.e. at least 50% of the Trader’s exports/imports must be to/from the U.S.). There is no set minimum level of trade which is considered sufficient, but obviously the lower the volume of trade the less likely one is to qualify as a Treaty Trader.

Nationals of qualifying countries may apply for an E-1 in order to ‘Develop and Direct’ import/export trade (of goods or services) between their own country and the U.S. They may also apply for E-1 for key managerial and specialist employees.

Eligibility for E-1 status centers on the volume of trade between the U.S. and the Treaty country. The prospective Treaty Trader must demonstrate that

• There will be a substantial number of trade transactions between the U.S. and the treaty country;
• There will be a substantial dollar value to the trade between the U.S. and the treaty country;
• The majority of international (i.e., not including transactions within the Treaty country or within the U.S.) trade transactions undertaken by the applicant (have been and) will be between the U.S. and the treaty country;
• The majority of the dollar value of trade (has been and) will be between the U.S. and the treaty country;
• The trader (or his or her employees seeking E-1 status) has sufficient business acumen and experience to develop and direct the trade;
• The trader and any other E-1 staff are able and willing to leave the U.S. upon termination of their E-1 status;
• The trader has a past history of conducting trade between the U.S. and the treaty country.

The Treaty Trader will usually apply for an E-1 visa at a U.S. consulate abroad where eligibility is determined by a Consular Officer.  Generally, registration of the Treaty Trader must be completed prior to employees applying for E-1 status, or in conjunction with the first employee seeking such status.  Employees applying for E-1 or E-2 status are addressed below. The duration of an E-1 visa will depend on visa reciprocity with the maximum duration being five years.  E-1 visa holders are generally given two-year periods of stay upon entering the U.S.

The E-2 Treaty Investor

Nationals of qualifying treaty countries who have made a substantial investment in the U.S. may qualify for E-2 Treaty Investor status. Like the E-1, there is no set minimum level of investment required to qualify for E-2 status, but the lower the investment the less likely one is to qualify. Again, the level of investment must be sufficient to justify the treaty national (or his or her employees) presence in the U.S. The investment must be in an operating business – i.e., simply buying property or stocks and bonds do not qualify. Additionally, a substantial part of the investment must have been made before applying for E-2 status.

Investors from qualifying countries may apply for E-2 status in order to ‘Direct and Develop’ their investment.  Like Treaty Traders, Treaty Investors  apply for an E-2 visa at a U.S. consulate abroad where eligibility is determined by a Consular Officer.  Generally, existing companies abroad apply to register as an E-2 company to open a branch or affiliate in the U.S. and be eligible to transfer key employees to the U.S. in E-2 status.   The duration of an E-2 visa will depend on visa reciprocity with the maximum duration being five years.  E-2 visa holders are generally given two-year periods of stay upon entering the U.S.

E-1 and E-2 Employees

Once the principal applicant or company has obtained registration as a Treaty Trader or Investor, qualifying employees will have a less complicated application process.  Two types of employee qualify for E-1 or E-2 status:

Executives & Managers

Executives and Managers should be going to develop and direct the trade or investment of the principal investor/trader/company in the U.S. Such personnel should be able to demonstrate their executive or managerial experience, though there is no requirement that they have worked for the principal trader or investor previously.

Specialist or Essential Skilled Workers

It is somewhat more difficult to obtain E-1 or E-2 status for employees in this category. To be eligible the Treaty Trader/Investor must demonstrate that:

• A U.S. resident worker could not fill the position
• The employment of the treaty national is necessary for the running of the principal trader or investor’s business in the U.S.
• U.S. workers will be trained to replace the treaty national (details of the proposed training must be given)
• Additionally, it is quite difficult to renew E-1 or E-2 status for a specialist or essential worker since by definition the treaty worker is to be replaced by U.S. workers.

If the above criteria are met, then an employee would be eligible for E-1 or E-2.  It is important to note that most employees applying for E-1 or E-2 status will be outside the U.S. and apply for E-1 or E-2 status in conjunction with applying for their visa at a U.S. consulate.  The Consular Officer determines eligibility for E-1 or E-2 status and if approved, the consulate will issue the corresponding visa to the employee who then uses that to travel to the U.S.  However, individuals who are lawfully present in the U.S. may apply to change status to E-1 or E-2 through a company-sponsored petition to the USICS.  However, if an individual changes to E-1 or E-2 status in the U.S. and later leaves the U.S. for a trip abroad, he or she will still have to present a complete application for E-1 or E-2 status at the U.S. consulate and have it adjudicated by a Consular Officer in order to obtain the corresponding visa to return to the U.S.  In other words, an approval of E-1or E-2 status from the USCIS is insufficient for one to apply for the corresponding visa at the consulate.

Frequently Asked Questions about E-1s and E-2s

What are the Advantages for Foreign Nationals with E-1 or E-2 status?

The E-1 and E-2 are renewable indefinitely.  Visas are generally given for five years and each time the individual enters the U.S. he or she is usually given a two-year period of stay.

They can bring dependents to the U.S.

Spouses entering on a corresponding dependent E visa are eligible to apply for an employment authorization document that allows him/her to work for any U.S. employer.

What are the Limitations for Foreign Nationals with E-1 or E-2 status?

They are restricted to working only for the specific employer or self-owned business that acted as the E visa sponsor.

An E-1 or E-2 employee must have the same nationality as the registered E company.

The status and corresponding visas are available only to foreign nationals of countries having trade treaties with the U.S.