Treaty Trader (E-1) and Investor (E-2) visas are nonimmigrant visas for nationals from countries with which the U.S. has a treaty of friendship, commerce, or navigation (a list of treaty countries can be found at the end of this article-this list is subject to change). The applicants must be coming to the U.S. to engage in substantial trade between the U.S. and the alien's country of nationality or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing, a substantial amount of capital.

E-1 and E-2 nonimmigrant visas do not lead to U.S. permanent residence or citizenship. However, they permit the applicant and qualified family members to live in the U.S. for an extended period of time. Unlike many of the nonimmigrant visas, applicants do not need to show they are coming to the U.S. for a specific period of time, as long as there is an ultimate intention to depart the U.S. and not permanently remain. Applicants are not required to provide proof of a foreign residence.

To qualify for an E-1 Treaty Trader Visa:

• The firm in the U.S. must have the nationality of a treaty country.
• The applicant must be a national of the treaty country.
• The international trade must be "substantial"; there must be a sizable and continuing
   volume of trade.
• The trade must be principally between the U.S. and the treaty country, which is defined
   to mean that more than 50% of the firm's international trade involved must be between the
   U.S. and the country of the applicant's nationality. Trade means the international exchange
   of goods, money, services, or technology. Title of items must pass from one party to
   another.
• The applicant must be employed in a supervisory or executive capacity, or possess highly
   specialized skills essential to the operation of the firm.

The term "trade" is defined to include not only goods but trade in services and technology, as well. This includes banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, technology transfer, and other measurable services which can be traded.

Substantial trade contemplates a continuous flow of trade items between the U.S. and the treaty country. This means numerous transactions rather than a single transaction regardless of monetary value.

To qualify as a Treaty Investor (E-2):

• The investor (either a real or corporate person) must be a national of a treaty country.
• The investment must be substantial. It must be sufficient to ensure the
   successful operation of the enterprise. The percentage of investment for a low-cost
   enterprise must be higher than the percentage of investment in a high-cost enterprise.
• The investment must be a real operating enterprise. Speculative or idle investment does
   not qualify.
• The investment must not be marginal. It must generate significantly more income than
   needed to provide a living to the investor and family, or it must have a significant economic
   impact in the U.S.
• The investor must have control of the funds, and the investment must be at risk in the
   commercial sense. For the purpose of measuring the investment, loans secured with the
   assets of the investment enterprise are not counted.
• The investor must be coming to the U.S. to develop and direct the enterprise. If applicants
   are not the principal investors, they must be employed as a supervisor, executive, or as
   the possessor of highly specialized skills.

Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, contingent only upon the issuance of the visa. Investment funds may come from any country, including the U.S., as long as they are controlled by the investor applicant.

There is no fixed amount which is considered "substantial." A substantial amount of capital constitutes that amount which is ample to ensure the investor's financial commitment to the successful operation of the enterprise as measured by the proportionality test. The "proportionality test" compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.

The investment must do more than merely yield a return capable of supporting the investor and family. A marginal enterprise is an enterprise which does not have the capacity to generate significantly more than enough income to provide a living for the investor, family and other alien employees.

The maximum period of time of admission under either E visa is 2 years. Extensions are granted up to 2 years at a time. Extensions are generally available for as long as the E-visa holder and family maintain their E visa status.

In order to obtain an E-1 or E-2 visa, you must be a national of one of the following treaty countries (E-1 and E-2 available, unless otherwise indicated by * or **):

* indicates country is eligible only for E-1 visa.
** indicates country is eligible only for E-2 visa.

Please be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection ("CBP") has authority to deny admission at the port of entry to any applicant who is inadmissible under Immigration & Nationality Act, even if the applicant has a visa! Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which will indicate the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

If you or your company, institution, or organization has a current or anticipated immigration matter, and would like to schedule a consultation or receive a fee quotation, please click here or call our office at (602) 678-2970.