Under the provisions of United States Immigration Laws, Treaty Trader (E-I) and Treaty Investor (E-2) visas are available to:
An alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him; (1 .) solely to carry on substantial trade, principally between the United States and the foreign state of which he is a national; or (2.) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing a substantial amount of capital.
SUBSTANTIVE REQUIREMENTS AND GUIDELINES
1. Treaty Trader (E-I)
The Treaty Trader visa symbolized by “E-I” is available to a national of a country which has entered into a treaty of commerce and navigation with the United States. Please see Appendix A for a list of countries eligible for Treaty Trader visas.
To qualify for a Treaty Trader visa an alien must be coming to the United States solely to carry on substantial trade principally between the United States and the foreign state of which the alien is a national.
For purposes of Treaty Trader visa, “Trade” is defined to mean: The exchange, purchase or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include but are not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer. With regard to the requirement that trade must be principally between the United States and the country of which the alien is a national, the Department of State’s Foreign Affairs Manual states:
Over 50 percent of the total volume of trade conducted in the United States must be between the United States and the treaty country of the alien’s nationality. If the firm’s U.S. office meets this percentile requirement, the duties of an employee need not be similarly apportioned to qualify for an E-I visa. If a U.S. branch office of a foreign firm is engaged principally in trade between the United States and the treaty country, it is not material that the office also engaged in third country or intra-U.S. trade or that the firm’s headquarters abroad is engaged primarily in trade with other countries.
Likewise, the term “substantial” as related to trade for eligibility for a Treaty Trader visa means:
The requirement of substantial trade as used in the treaty trader clause is not intended to discourage particular types of trade or to necessarily exclude employees of small companies. The legislative history of the visa classification indicates that the word “substantial” does not necessarily have reference to the monetary value of tlie transaction but to the volume of trade conducted, and that proof of numerous transactions, although each of small value, would establish the requisite continued course of international trade.
To be eligible for the Treaty Trader visa, the alien must establish to the satisfaction of the consular officer that he intends to depart from the United States upon the termination of his status. Although the nationality of the beneficiary is determinative for issuance of the Treaty Trader visa, the nationality of a spouse or child of a treaty trader is not material for the classification of such spouse or child.
Unlike other types of nonimmigrant visas, it is not necessary that an applicant for an “E” visa establish that he is proceeding to the United States for a specific temporary period of time. Furthermore, the “E” visa does not require that an applicant prove he has a residence in a foreign country which he has no intention of abandoning.
While a Treaty Trader visa beneficiary is usually self-employed, the visa is also available for a foreign person employed by an organization of the same nationality provided the employer is in valid E-I visa status or eligible for an E-I visa.
The nationality of a corporation is determined by the nationality of the shareholders. Thus, if a foreign or domestic corporation is owned at least 50% by persons of the treaty trader’s nationality an employee thereof would be eligible for a Treaty Trader visa. However, these shareholders must be non resident aliens. Thus, a permanent resident alien employer does not qualify to bring employees into the United States with a Treaty Trader visa. If the employee is employed by a foreign person, the foreign person must be either maintaining treaty trader status himself or residing abroad.
A Treaty Trader’s employment must be of a supervisory or executive nature or the alien must have specific qualifications that will make his services essential to the efficient operation of the employer’s enterprise. An E-1 visa beneficiary must not be employed solely in an unskilled manual capacity.
2. Treaty Investor (E-2)
The Treaty investor’s visa symbolized by an “E-2” is available to aliens coming to the United States solely to develop and direct operations of an enterprise in which the alien has made a substantial investment. Please see Appendix A for a list of countries eligible for Treaty investor visas.
The word substantial as used in the Treaty investor clause is not intended to discourage particular types of investment or necessarily to exclude small investors. What constitutes a substantial investment depends on the nature of the enterprise and is therefore not necessarily determined by the size of the investment. For example, more capital would be required to establish a manufacturing company than might be required for a service enterprise. It should be noted that the Department of State cautions the consular officers to insure that the investment is not being used as a pretext to evade the quota or other restrictions which are applicable to immigrants and that the enterprise is not a fictitious paper organization. Thus contracts, exchanges of correspondence or other written evidence is often required to establish that these conditions are met.
To obtain a Treaty Investor visa, the investment must be actual and must create job opportunities for U.S. workers. To qualify as an investment the alien must be personally at risk for the amount of capital.
In order for an employee to qualify for Treaty Investor status the employee must be: 1) employed in a managerial capacity; or 2) be highly trained and specially qualified as technical personnel required in the United States for one of the following purposes: establishment of the enterprise; training or supervision of technicians employed in manufacturing, maintenance and repair functions; or the continuous development of product improvement and quality control.
The substantive requirements and guidelines of the Treaty Trader visa (E-I) apply as well to the Treaty lnvestor (E-2) visa.
1. Principal Alien
- If the alien is in the United States, the principal alien may submit an application for a change of nonimmigrant status along with the required forms and documents to qualify him for Treaty Trader lnvestor status. The processing time for the visa varies depending on the workload at the Immigration and Naturalization Service. Processing time to obtain a new visa from an American Consulate is usually less than for a change of status in the U.S.
- If the alien is outside the United States, the prospective Treaty Trader lnvestor may apply at the American Consulate for the visa. This is usually done in the country of which the alien is a national, but can be done in another country subject to the local consular post’s discretion if the alien has substantial ties there. However, it should be noted that the decision of the American Consulate regarding the issuance of the visa is rarely reviewable.
2. Spouse and Unmarried Children Under 21
- If they are in the United States no additional application is needed.
- If they are outside the United States after the principal alien obtains his status, a copy of the approval should be taken to the American Consulate in order to obtain the derivative E-IIE-2 status for the spouse and minor unmarried children.
- The status of the children terminates upon reaching 21 or upon marriage.
- Currently, the lmmigration and Naturalization Service does not have the authority to authorize the spouse or child of an “En visa beneficiary to engage in employment in the United States while in derivative “E” visa status.
3. Maintenance of Status
The initial period of admission for the alien and family is a maximum of one year. Extensions may be granted for periods of two years so long as the status is properly maintained and the business activity continues. The principal alien may only accept the employment for which the Treaty Trader investor status was authorized. Approval of the district Director of the Immigration and Naturalization Service is required in order for the principal alien to change employers.