Frequently Asked Questions for E-1/E-2 Treaty Trader or Treaty Investor Visa

What is the purpose of E-1/E-2 visas?

E-1 visas are available to Treaty Traders, while E-2 visas are available to Treaty Investors. Both categories require that the United States maintain treaties of commerce and navigation with the foreign country, allowing for trade and/or investment in the United States.

What are the requirements of E-1“treaty trader“ visa?

The E-1 visa is known as the treaty trader visa and benefits nationals of the treaty partner who are engaged in a substantial volume of trade with the United States.

Treaty trader applicants must meet specific requirements to qualify for a treaty trader (E-1) visa under immigration law. The requirements of E-1 treaty trader visa are:

  1. The applicant must be a national of a treaty country.
  2. The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
  3. The international trade must be “substantial“ in the sense that there is a sizable and continuing volume of trade.
  4. The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality.
  5. Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
  6. The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

What is “trade“ for the purpose of treaty trader visa?

The term “trade“ includes the exchange, purchase, or sale of goods and/or service. Trade is interpreted broadly and can include banking, tourism, transportation, communication, consulting services, design and engineering and insurance.

What constitutes “substantial“ for the purpose of E visa?

“Substantial“ is interpreted for traders as constituting more than 50 percent of the activity, and, for investors, as an amount sufficient to establish a viable, and not a marginal, enterprise. The trade transactions do not have to be individually large, as long as they are numerous and the total percentage volume of trade must be at least 51 percent by and between the United States and the treaty country.

What are the definitions of “goods“ and “services“?

Goods are tangible commodities of merchandise having intrinsic value, excluding money, securities, and negotiable instruments. Services are economic activities whose outputs are other than tangible goods.

What is the possible disadvantage of E-1 visa?

If the majority of trade volume shifts from the treaty trader to that of the third country, the entrepreneur might be disqualified from the visa.

What are the requirements of E-2 Treaty Investor visa?

The requirements of E-2 Treaty Investor visa are:

  1. The applicant must be a national of the one of the treaty countries;
  2. The individual employee and/or business must possess the nationality of the treaty country;
  3. Applicant must have invested or is actively in the process of investing;
  4. The subject enterprise must be a real and operating commercial enterprise;
  5. The applicant's investment must be substantial;
  6. Investment must be more than a marginal one solely for earning a living;
  7. Applicant must be in a position to “develop and direct“ the enterprise;
  8. Applicant, if an employee, must be destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United States; and
  9. Applicant must intend to depart the United States when the E-2 status terminates.

What qualifies a company as a national of a treaty country?

To be qualified as a national of one of the treaty countries, the investment enterprise must be at least 50%-owned by nationals of the treaty country, and the alien investor or employee must also be a national of that country.

What is the “substantial“ requirement of investment in law for the E-2 visa?

The investment must be of a substantial nature and must not be marginal. The law does not establish a particular amount of money to fulfill the requirement of substantial, nor is the term substantial defined clearly, nor is there a mathematical formula that can be used to discover this meaning. The regulations of the Department of State articulate the question of substantial amount of capital as:

  1. Substantial in the proportional sense, i.e., in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
  2. Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and
  3. Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

The regulations also indicate that “whether an amount of capital is substantial in the proportionality sense is understood in terms of an invested sliding scale; i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.“

What is the minimum amount of cash required to meet the test of substantiality?

As a general guideline, the minimum amount of cash required to meet the test of substantiality is $100,000 U.S., as long as that amount is proportional to the cost of acquisition. An investment of less than this sum might seem to many U.S. consuls as insubstantial per se unless one could establish that the business does not require more capital than that invested and that the sum invested represents all or almost all of the price of acquisition. However, this figure must be considered as a rule-of-thumb and must be analyzed in light of the type of business, the investment, the proportion of capital to acquisition cost, the rate of return and all of the other factors.

Is there an amount of money that will meet the substantiality test of the E-2 visa for sure?

With an investment of a large sum of capital in the amount of $1,000,000 or more, substantiality will be presumed as a result of its sheer size, even though it may not approximate the recommended percentages.

In addition to the substantiality test, are there other restrictions on the investment for the E-2 visa?

The investment must also be active, not just passive investment such as in stock or real estate. It must involve funds and assets for which the investor is personally at risk; loans secured by the assets of the enterprise are not acceptable.

How long can I stay in the States with the E-visa?

Treaty aliens are admitted to the United States for an initial period of two years, regardless of the period of validity of the foreign national's visa; even if the visa has a validity period of one week remaining, the alien may be admitted for a full one-year period. On every trip abroad, a treaty alien is readmitted for a new period of two years. Thus, if you travel abroad at least once a year, you need never obtain extensions of their U.S. stay through an application to USCIS.

How can I extend E-visa for me and my family?

If you do not travel during a two-year period, you need to apply for an extension of your nonimmigrant stay by making an application by mail to the USCIS. The application is made on Form I-129. Family members of the E alien are not included in the extension-of-stay application on Form I-129, and must submit accompanying extension applications on USCIS Form I-539, the standard nonimmigrant application for extensions of stay.

Extension requests filed on Form I-129 (and accompanying I-539 forms for dependents) must be filed with the California Service Center, regardless of the location of employment. Extensions of stay can be granted by USCIS in increments of two years, with no outer limit on the total period of stay for the E visa holder.

Does my E-visa authorize me to work?

The E-visa holder may engage in employment activities that are incidental to the terms and conditions of the nonimmigrant classification. The terms and limitations of the authorized employment activity will be annotated on the alien's E visa.

Does my spouse's E-visa authorize him/her to work?

Yes, spouses of E-1 and E-2 nonimmigrants may apply for employment authorization.

Where should the E visa application be submitted? What forms should be filed?

The usual method for obtaining treaty status is to apply for an E nonimmigrant visa at a U.S. consulate located abroad. The E visa application must be accompanied by documentation regarding the principal requirements for treaty trader or investor status. This standardized version of the form (currently designated Form DS-156E) has become mandatory at consulates issuing E visas.

For foreign nationals already in the United States in a different nonimmigrant category, it is possible to apply to the USCIS for a change of nonimmigrant status to E-1 or E-2 classification. This application is made on USCIS Form I-129; the form is accompanied by the same documentation as would accompany a nonimmigrant visa application.

Where should Form I-129 be filed?

I-129 forms (and accompanying I-539 forms for dependents) must be filed with the California Service Center, regardless of the location of employment.

Can I expedite my E visa petition?

Yes. E petitioners may seek expedited processing of their cases. Such cases must be adjudicated within 15 business days. Petitioners requesting premium processing must submit Form I-907 and the $2,805 fee required for such requests. The fee is separate from the standard filing fee for the I-129 petition.

What is the procedure of obtaining E visa via U.S. consulate located abroad?

Once the necessary papers for an E visa application are completed, several steps need to be taken. The nonimmigrant visa application package must first be submitted to the U.S. post abroad. Some consulates will prescreen the application prior to an interview. During this process, applicants may be required to submit further documentation. The next step is the visa interview with the visa applicant, although it is possible that the consular officer may want to meet initially only with the company representative or individual investor prior to an interview with the persons or employees actually coming to the United States, in order to resolve first the eligibility of the trading or investment enterprise for treaty classification. At many consulates, the issues of treaty qualification for the company and visa issuance for the first visa applicant can be handled as part of the same interview process. If a determination has been made through prescreening to qualify the company or investment for treaty purposes, the main focus of the interview will be the admissibility of the employee and his or her family members to the United States as nonimmigrants.

How long is the E-visa valid?

The E visa is issued for a period of validity and number of entries to the United States based on reciprocity between the United States and the alien's home country. For most treaty countries a five-year period of visa validity is typical, as is a multiple entry visa. The maximum periods of validity for E visa from each treaty country are listed by country in Foreign Affairs Manual, volume 9.

What visa does family member of E-1 and E-2 visa get?

Family members of a foreign national qualified for E-1 or E-2 status are classified in the same subcategory as the principal alien; no separate subcategory is designated just for family members, as is the case with many other nonimmigrant categories.