E Treaty Trader and Treaty Investor Visas
As part of its foreign relations program, the United States has entered into treaties with other countries that enable certain foreign nationals to obtain “E” Treaty Trader and Treaty Investor visas or status in the United States. The treaties are arrangements, which seek to enhance and facilitate economic and commercial interaction between the United States and the country that signs the treaty. Since these arrangements vary by country, it is recommended that you seek the advice of an experienced immigration attorney, to confirm if your country has such a treaty with the United States and if there are any restrictions for obtaining the visa or status. Nonetheless, here is some very basic information which must be taken into account when considering if you want to apply for an E-visa or status.
Overview of the E visa
One of the main advantages of having an E-visa or status is that it allows you to be your own boss, since you would be working for your own company in furtherance of your investment or trade. Other advantages are that it allows you to remain in the United States for an indefinite period of time, it does not require you to maintain ties to your home country, and, if you obtain your E-visa from the U.S. Embassy in your home country, you can travel outside of the United States, without giving up your status or visa, so long as it is still valid.
The E visa or status has two subcategories, the E-1 classification is for treaty traders and the E-2 classification is for treaty investors. Regardless of the classification, in order to be eligible for an E-visa or status, the following must be established: you, as the principal applicant, must be a national of a country with which the United States has a treaty; a business must be established from which you will work under your E-visa or status; and at least fifty (50%) of the business must be owned by nationals of the treaty country. If you are granted the E-visa, your foreign-born spouse and children can obtain the same E-visa or status, regardless of their country of nationality.
E-1 Treaty Trader classification
The E-1 classification is given to allow an individual, who is in a supervisory position or who can perform essential services for the company, to carry on substantial trade between the United States and the country of which they are nationals. You must show that an actual exchange of items of trade, such as goods or services, is the basis for obtaining this classification and that this exchange of goods or services is already in place. Trade is defined for immigration purposes as the international exchange, purchase, or sale of goods or services. Thus, developing the domestic market without international exchange does not qualify for the E-1 classification. Furthermore, the trade between the countries involved must be substantial; in other words, the amount of trade must be sufficient to ensure a continuous flow of it over time, as opposed to a single transaction.
E-2 Treaty Investor classification
Unlike the E-1 Treaty Trader classification, which requires that trade already be in existence at the time the classification is sought, the E-2 Treaty Investor classification can be given to an individual who is establishing a new company in the United States. The E-2 classification allows you to work in the United States to develop and direct the operations of a company in which you have invested or are in the process of investing a substantial amount of capital. You must establish that you own or have acquired at least fifty percent (50%) ownership of the company in the United States and that you will be working in a managerial capacity for the company.
In addition, as the Treaty Investor, you must show: that you have made an irrevocable and substantial investment in the company, meaning that your investment is at risk of partial or total loss if the investment fortunes reverse; that you are coming to the United States to develop and direct the company; and that the company has the ability to generate more than enough income to provide you and your family with a minimal living. Your investment in the company must be funded by capital for which you are personally liable and which is not be secured by loans. Although there is no amount specified under the definition of substantial investment, a proportionality test is used on a case-by-case basis taking into account the industry, type of enterprise, size and commercial value of the proposed business.
Employees of E-Treaty Companies
Employees of qualified treaty persons or business organizations may obtain their own E-visa. However, they must have the nationality of the treaty country who is maintaining the status of Treaty Trader or Treaty Investor and they must be coming to the United States to work in a supervisory capacity or to perform essential services for the company. However, the status of that employee terminates as soon as the principal’s Treaty Trader or Treaty Investor status ends.
Visa Application and Duration
You can apply for an E-visa through the U.S. Embassy in your country of nationality. You can also apply for E-status through the offices of U.S. Citizenship and Immigration Services, but only if you are physically present in the United States and in some other lawful status. Please note that while the granting of an application for a change of nonimmigrant status to E-status permits you to remain in the United States as a Treaty Trader or Treaty Investor, this authorization is not an actual visa. The actual visa can only be obtained at the U.S. Embassy in your home country.
The maximum validity period for an E-visa depends on the agreement signed by the U.S. and the treaty country. The maximum period is usually five years, but every time you enter the United States, you are generally granted two years of stay at a time. Fortunately, the E-visa may be extended indefinitely, so long as you can show you continue to qualify for the same.
Suggested documents to collect for the application
As with any application filed to gain an immigration benefit, there are forms to be completed and supporting documents to be presented. We suggest that you contact an experienced immigration attorney to assist you with the complete preparation of the application packet. However, here is a list of some of the documents that you should try obtain for the application packet:
As proof of ownership of the U.S. company:
- Copy of the incorporation or registration certificates of the company in the United States
- Evidence of obtaining an Employer Identification Number from the Internal Revenue Service
- Minutes of the first meeting of the board of directors
- Lease/sublease or other evidence showing the establishment of an actual office in the United States
As to information on the type of business to be established in the United States:
- Brochures or promotional materials
- Copies of any licenses to conduct the type of business
- Receipts for purchases of inventory or equipment, purchase orders, or trade correspondence
As to evidence of the amount of the investment and the source of the funds:
- Bank statements showing the transfer of funds from a foreign bank to a U.S. bank
- Statements showing the withdrawal of funds from a foreign bank and statements demonstrating their deposit into a U.S. account
As to evidence of the investment itself:
- Receipts for purchases of equipment, real property, and/or start-up inventory
- Receipts for telephone costs, costs of any required licenses, initial rental costs of equipment, purchase of inventory and any other costs incurred to establish the U.S. company
As to the prospects for the proposed investment:
- Sales contract or agreement to purchase the enterprise
- Letters or documents demonstrating ongoing negotiations
- Detailed business plan or market research study for the company
- Financial projection of the U.S. company for the next five years, preferably prepared by a Certified Public Accountant
As to the duties to be performed by the Applicant:
- Personnel or organizational charts showing the personnel of the U.S. company or proposed personnel structure
- Detailed job description of the position to be held by the applicant
As to the Applicant’s qualifications:
- Letter of overseas entity verifying the applicant’s employment experience
- Copies of degree certificates or proof of academic achievement
- University transcripts
- Resume or curriculum vitae, which details the employment history of the applicant giving dates, title and description of duties performed abroad
Organizational chart of the overseas entity describing the applicant’s position in the hierarchy or structure in relation to other employees, if applicable.
