Frequently Asked Questions for the E-1/E-2 Treaty Trader or Treaty Investor Visa
What is the purpose of E-1/E-2 visas?
Treaty traders have access to E-1 visas while treaty investors have access to E-2 visas. To allow for investment and/or trade, the U.S. must maintain treaties of navigation and commerce with the foreign country in order to meet the requirements for both categories.
What are the requirements of an E-1“treaty trader” visa?
The E-1 visa, known as the treaty trader visa, benefits residents of a treaty partner who are involved in a significant trade volume with the U.S.
Immigration law states that in order to qualify for a treaty trader (E-1) visa, applicants have to meet detailed requirements. The E-1 treaty trader requirements are as follows:
The applicant should be a resident of a treaty country.
The E-1 visa applicant’s trading firm and the treaty country must be the same nationality.
There should be “substantial” international trade which means that there is a proven continuous and substantial amount of trade.
More than 50 percent of the international trade must be between the applicant’s nationality (treaty) country and the U.S.
Trade is defined as the international exchange of technology, services, and goods where title of the items traded passes from one party to another.
The visa applicant must be working in an executive or supervisory capacity, or possess expert skills critical to the efficient operation of the company. Unskilled or regularly skilled employees are not qualified.
What is “trade” for the purpose of a treaty trader visa?
The word “trade” refers to the sale, purchase, or exchange of services and/or goods. Trade is broadly defined to include engineering, communication, banking, insurance, transportation, design, tourism, and consulting services.
What constitutes “substantial” for the purpose of an E visa?
“Substantial” is defined for traders as representing more than 50 percent of the trade, and for investors, as a quantity adequate enough to create a viable, not a minimal enterprise. The individual trade transactions do not have to be substantial as long as there is enough so that the total percentage of the trade volume is at least 51 percent between the treaty country and the U.S.
What are the definitions of “goods” and “services”?
Goods are defined as Goods are tangible products which have real value, not including securities, negotiable instruments, and money. Services are defined as economic pursuits whose result is not a tangible product.
What is the possible disadvantage of E-1 visa?
If the percentage of trade volume transfers from the U.S. to the foreign country, the applicant may no longer qualify for the visa.
What are the requirements of an E-2 Treaty Investor visa?
The E-2 Treaty Investor visa requirements are:
The applicant must be a citizen from one of the treaty countries;
The applicant and/or company must have the same nationality as the treaty country;
The applicant must have invested or be currently in the process of investing;
The relevant business must be a real and functioning viable business;
The applicant’s investment must be significant;
The applicant’s investment must be more than just for minimal financial support;
The applicant must be able to “develop and direct” the business;
If the applicant is an employee, they must be heading for a supervisory/executive position or possess expert skills essential to the business’ functions in the U.S.; and
The applicant must plan to leave the U.S. when the E-2 visa expires.
What qualifies a company as a national of a treaty country?
To qualify as a national of a treaty country, the investment business must be a minimum of 50 percent-owned by nationals of the treaty country, and the non-resident investor or employee must also be a national of that country.
What is the “substantial” requirement of investment for the E-2 visa?
The investment should be of a substantial nature and cannot be insignificant. The law does not define a specific amount of money to satisfy the condition of substantial, and the term substantial is not clearly defined, nor is there a specific mathematical formula that can define this meaning. The Department of State regulations answer the question of a substantial amount of wealth as:
Substantial in the comparative sense, i.e., in relation to the total cost of either buying an established business or forming the type of business under deliberation;
Sufficient to guarantee the treaty investor’s monetary obligation to the successful function of the business; and
Significance to support the idea that the treaty investor will effectively direct and develop the business.
The guidelines also say 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 substantial investment?
As a general rule, the minimum amount of cash required to meet the test of substantial investment is $100,000 U.S., as long as that amount is proportional to the purchase cost. An investment of less than this amount might appear to be insubstantial unless it can be proven that the business does not require a larger investment and that the amount invested represents the majority of the purchase price. However, this amount must be a general guideline and should be evaluated concerning factors such as the investment, the ratio of capital to purchase cost, the rate of return, the type of business, and other factors.
Is there a specific amount of money that will meet the substantial investment test of the E-2 visa?
An investment amount of $1,000,000 or more will be considered as a substantial investment because of the large size of the commitment even though it might not meet the recommended percentage from the guidelines.
In addition to the substantial investment test, are there other investment restrictions for the E-2 visa?
The investment must be active in nature (capital investment), not just inactive (real estate or stock). It must involve investments that put the investor at risk. Loans secured by the business assets do not meet the requirement of being an active investment.
How long can I stay in the U.S. with the E-visa?
Treaty non-residents are admitted to the U.S. for an initial term of two years, regardless of the remaining term of validity on the non-resident’s visa. For example, if the visa only has one week of validity left, the non-resident will be admitted for the full two-year period. Every trip abroad will result in the non-resident being readmitted with a new two-year validity period which means that if the non-resident travels outside of the U.S. once a year, they will never need to apply for an extension from the USCIS.
How can I extend the E-visa for me and my family?
If you and your family do not travel outside the U.S. during the two-year period of validity on the E-visa, you will need to apply for an extension with the USCIS on Form I-129. Family members are not included on Form I-129, so they will need to fill out Form I-539 which is the standard application for a stay extension.
Extension requests on Form I-129 (and supporting I-539 forms for family) must be filed with the California Service Center, without regard to the employment location. Extensions may be granted by USCIS in two-year segments, with no maximum time limit of stay for the holder of the E visa.
Does my E-visa authorize me to work?
The holder of an E-visa may be employed in activities related to the conditions of the non-resident classification. The specific conditions will be noted on the non-resident’s E visa.
Does my spouse’s E-visa authorize him/her to work?
The answer is yes, the spouses of both E-1 and E-2 non-residents can apply for authorization of employment.
Where should I submit the E-visa application? What forms should be filed?
The non-resident should apply for the E visa at a U.S. consulate abroad. The application must be submitted along with the supporting evidence of the main requirements for investor status or treaty trader. The current version of the form (Form DS-156E) is mandatory for consulates issuing the E visa.
For non-residents already in the U.S. under a different visa category, it is possible to apply to the USCIS for a change of status to E-1 or E-2. This should be done by submitting Form I-129 and any supporting evidence required for the visa application.
Where should I file Form I-129?
The I-129 forms (and supporting I-539 forms for family) must be filed with the California Service Center, without regard to the employment location.
Can I expedite my E visa petition?
The answer is yes, E visa applicants can seek accelerated processing of their cases. Expedited cases must be decided within fifteen days. Applicants asking for accelerated processing should submit Form I-907 along with the $1,000 fee required for expedited requests. This fee is in addition to the I-129 standard filing fee.
What is the procedure of obtaining an E visa from a U.S. consulate located abroad?
After the E visa application is completed, there are several steps that need to be taken to complete the process. The non-resident visa application packet must be submitted to the U.S. consulate abroad where it might be prescreened before an interview. During this procedure, further evidence may be requested from the applicant. The interview with the visa applicant is then conducted, although the consular officer may want to meet with the individual investor or company representative before the interview with the person coming to the U.S. in order to prove eligibility for the treaty classification. Many times, the company qualification and visa issuance can be accomplished during the same interview. If the company or investment were qualified during a prescreening, then the interview will focus on the eligibility of the applicant and family members into the U.S. as non-residents.
How long is the E-visa valid?
The E visa validity period and quota of entries are determined by an agreement between the U.S. and the non-resident’s home country. In most cases, a validity period of five years is common as well as the issuance of multiple entry visas. The maximum validity periods for E visas are listed by country in the Foreign Affairs Manual, volume 9.
What visa is issued to the family members of E-1 and E-2 visa applicants?
Family members of a non-resident qualified for E-1 or E-2 visas are classified in the same category as the principal visa holder. There is not a separate category for family members as in the case of other visa categories.
What is the filing fee for E-1 and E-2 visas?
The E-1 or E-2 filing fee is $390.
What is the attorney fee for an E visa petition?
The attorney fee is established on a case-by-case basis. Please refer to the following legal fee chart for Aria Law Group.
