Treaty Trader (E-1) & Treaty Investor (E-2) Nonimmigrant Visas

Nankin & Verma PLLC is a full service immigration law firm that helps businesses and individuals from all over the world with their U.S. immigration needs.

The E-1 and E-2 categories of nonimmigrant (temporary) visas are designed to allow foreign companies and individuals from treaty countries (listed below) to engage in international trade (E-1) or international investment (E-2) activities in the United States.

An E-1 or E-2 visa holder may only work in the activity for which he or she was approved at the time the classification was granted. Additionally, these visa categories are employer-specific, which means the visa holder may only work for the organization (can include parent or subsidiary company) that submitted the original application. In the case of an individual trader or investor, he or she may not accept employment with any organization once here in the United States. Any substantive changes in employment must be submitted to the USCIS for approval.

Both categories are generally approved in two-year increments and may be extended periodically provided that certain requirements are met. However, E-1 or E-2 status cannot serve as the basis for a green card petition, and must be relinquished upon filing an I-130 (family-based) or I-140 (employment-based) petition for permanent residency. Therefore, careful is planning is required if an E-1 or E-2 visa holder desires to become a lawful permanent resident.

Most E-1 and E-2 petitions are processed by the State Department outside the United States at U.S. consulates and embassies abroad. However, some individuals who are already in the United States in valid non-immigrant status could be eligible apply for a change of status to E-1 or E-2 while remaining in the United States.

Both E-1 and E-2 categories provide for derivative non-immigrant status for the dependents (spouses and children under the age of 21) of E-1 and E-2 visa holders. The spouse of an E-1 or E-2 visa holder may petition the USCIS for work authorization once here in the United States. These are separate applications, and typically take approximately 90 days to process.

Current E-1 and E-2 Treaty Countries as provided on the http://travel.state.gov website (last accessed on 06/24/16):

View the full list

Country Classification
Albania E-2
Argentina E-1
Argentina E-2
Armenia E-2
Australia E-1
Australia E-2
Austria E-1
Austria E-2
Azerbaijan E-2
Bahrain E-2
Bangladesh E-2
Belgium E-1
Belgium E-2
Bolivia E-1
Bolivia E-2
Bosnia and Herzegovina 11 E-1
Bosnia and Herzegovina 11 E-2
Brunei E-1
Bulgaria E-2
Cameroon E-2
Canada E-1
Canada E-2
Chile E-1
Chile E-2
China (Taiwan) 1 E-1
China (Taiwan) 1 E-2
Colombia E-1
Colombia E-2
Congo (Brazzaville) E-2
Congo (Kinshasa) E-2
Costa Rica E-1
Costa Rica E-2
Croatia 11 E-1
Croatia 11 E-2
Czech Republic 2 E-2
Denmark 3 E-1
Denmark E-2
Ecuador E-2
Egypt E-2
Estonia E-1
Estonia E-2
Ethiopia E-1
Ethiopia E-2
Finland E-1
Finland E-2
France 4 E-1
France 4 E-2
Georgia E-2
Germany E-1
Germany E-2
Greece E-1
Grenada E-2
Honduras E-1
Honduras E-2
Iran E-1
Iran E-2
Ireland E-1
Ireland E-2
Israel E-1
Italy E-1
Italy E-2
Jamaica E-2
Japan 5 E-1
Japan 5 E-2
Jordan E-1
Jordan E-2
Kazakhstan E-2
Korea (South) E-1
Korea (South) E-2
Kosovo 11 E-1
Kosovo 11 E-2
Kyrgyzstan E-2
Latvia E-1
Latvia E-2
Liberia E-1
Liberia E-2
Lithuania E-2
Luxembourg E-1
Luxembourg E-2
Macedonia, the Former Yugoslav Republic of (FRY) 11 E-1
Macedonia, the Former Yugoslav Republic of (FRY) 11 E-2
Mexico E-1
Mexico E-2
Moldova E-2
Mongolia E-2
Montenegro 11 E-1
Montenegro 11 E-2
Morocco E-2
Netherlands 6 E-1
Netherlands 6 E-2
Norway 7 E-1
Norway 7 E-2
Oman E-1
Oman E-2
Pakistan E-1
Pakistan E-2
Panama E-2
Paraguay E-1
Paraguay E-2
Philippines E-1
Philippines E-2
Poland E-1
Poland E-2
Romania E-2
Serbia 11 E-1
Serbia 11 E-2
Senegal E-2
Singapore E-1
Singapore E-2
Slovak Republic 2 E-2
Slovenia 11 E-1
Slovenia 11 E-2
Spain 8 E-1
Spain 8 E-2
Sri Lanka E-2
Suriname 9 E-1
Suriname 9 E-2
Sweden E-1
Sweden E-2
Switzerland E-1
Switzerland E-2
Thailand E-1
Thailand E-2
Togo E-1
Togo E-2
Trinidad & Tobago E-2
Tunisia E-2
Turkey E-1
Turkey E-2
Ukraine E-2
United Kingdom 10 E-1
United Kingdom 10 E-2
Yugoslavia 11 E-1
Yugoslavia 11 E-2

E-1 Visa Overview

“Trade” is defined by the USCIS as the existing international exchange of items of trade for consideration between the United States and the treaty country. These “items” can be goods or services, and include industries such as banking, insurance, transportation, tourism, technology, media, and more. The beneficiary of an E-1 Treaty Trader application can either be an individual who wishes to conduct trade here in the United States or an employee of a qualifying organization. Each type of application has slightly different requirements.

Requirements for an Individual Treaty Trader:

  1. Be a national of one of the treaty countries listed above;
  2. Carry on substantial trade (an undefined but high number of international transactions); and
  3. Carry on principal trade between the United State and the qualifying treaty country (more than 50% of the business is conducted between these two countries).

Requirements for the Employee of a Treaty Trader Organization:

  1. Be employed by an organization that is at least 50% owned by nationals of the qualifying treaty country (these nationals must either be here in the United States in E-1 status, or, if abroad, must be able to qualify for E-1 status);
  2. Be a national of the same treaty country that qualifies the organization;
  3. Meet the definition of “employee” under relevant law (must be controlled by and paid by the organization); and
  4. Engaged in an executive or supervisory capacity, or have special skills that are “essential to the efficient operation of the business. Qualifying “special skills” can be derived from:
    • The degree of proven expertise in the employee’s area of operations;
    • The small number of other people possessing those same skills;
    • The lack of availability of employees with those skills in the United States; or
    • Some other source showing that these skills are both essential to the organization and unique to the employee.

E-2 Visa Overview

An “investment” is defined by the USCIS as the placing of capital at risk in the commercial sense with the objective of generating a profit. Capital can include funds or other assets. These must be subject to partial or total loss if the investment fails. Similar to the E-1 category, the beneficiary of an E-2 application can come to the United States either in an individual capacity or as an employee of a qualifying organization.

Requirements for an Individual Treaty Investor:

  1. Be a national of one of the treaty countries listed above;
  2. Have invested or be actively in the process of investing a substantial about of capital;
    1. Capital is substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new enterprise.
    2. Capital is sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise.
    3. Capital is great enough to support the growth and expansion of the enterprise.
  3. Show that capital has not been obtained, directly or indirectly, from criminal activity (show legal possession of capital);
  4. Invest the capital in a bona fide (actual, legally operational) enterprise in the United States that has the capacity, currently or within five years, to generate sufficient income for the treaty investor (and family) to live on; and
  5. Enter the United States solely to develop and direct the investment enterprise. This can be shown through:
    1. Possession of at least 50% ownership of the enterprise; or
    2. Possession of operational control through a managerial position.

Requirements for the Employee of a Treaty Investor Organization:

  1. Be employed by an organization that is at least 50% owned by nationals of the qualifying treaty country (these nationals must either be here in the United States in E-2 status, or, if abroad, must be able to qualify for E-2 status);
  2. Be a national of the same treaty country that qualifies the organization;
  3. Meet the definition of “employee” under relevant law (must be controlled by and paid by the organization); and
  4. Engaged in an executive or supervisory capacity, or have special skills that are “essential to the efficient operation of the business. Qualifying “special skills” can be derived from:
    1. The high salary those special skills command;
    2. The degree of proven expertise in the employee’s area of operations;
    3. The small number of other people possessing those same skills;
    4. The lack of availability of employees with those skills in the United States; or
    5. Some other source showing that these skills are both essential to the organization and unique to the employee.

EB-5  – Investor Visa Overview

The EB-5 category, known as the Immigrant Investor Program, was first created by Congress in 1990 for the purpose of stimulating job creation and capital investment in the United States. It is a program under which foreign investors can apply for permanent resident status. These investors must be ready to invest a substantial amount of capital (typically between $500,000 and $1 million) in a new commercial enterprise. Approved EB-5 applicants will be admitted as Conditional Permanent Residents for a two-year period, after which time each applicant will have to show that the enterprise still qualifies.

“New Commercial Enterprise” Requirements:

  1. The enterprise must have been established after November 29, 1990, or it must have been significantly expanded, restructured or reorganized since that time so that a new commercial enterprise results;
  2. The enterprise must be for-profit;
  3. The enterprise must be formed for the ongoing conduct of a lawful business;
  4. The enterprise must create or preserve at least ten (10) full-time jobs for qualifying U.S. workers (citizens or residents) within two (2) years of the foreign investor’s admission to the United States as a Conditional Permanent Resident;
    1. If the jobs are preserved (rather than created), the ten (10) jobs must be in an enterprise that incurred a net loss during the 12 to 24 months immediately prior to the investor’s EB-5 priority date of at least 20% of the business’ net worth prior to the loss; and
    2. The ten (10) jobs must be within the enterprise itself, unless the investor-applicant invests the capital in a “regional center” as per the Pilot Program discussed below.

Capital Investment Requirements:

  1. Capital is defined as cash, equipment, inventory, or any other item of value that is secured by assets owned by the foreign investor;
  2. Capital was acquired lawfully;
  3. Capital is owned by foreign investor (cannot be borrowed);
  4. Capital is actually committed and will be made immediately and irrevocably available upon approval of the petition (Escrow Agreement); and
  5. Value of capital invested is at least $1 million, unless the enterprise is located in a targeted employment area, in which case it is at least $500,000. A targeted employment area is an area that, at the time of investment:
    1. Is experiencing unemployment of at least 150% of the national rate;
    2. Is located outside any Metropolitan Statistical Area, as designated by the federal Office of Management and Budget; or
      Has a population of less than 20,000 according to the most recent U.S. census.

Pilot Program and Regional Centers

Part of the EB-5 preference category outlines a pilot program that allows foreign investors make their investments through designated regional centers. Doing so relaxes the job creation requirements to count indirect employment opportunities as part of the ten (10) jobs required to be created for U.S. workers. The USCIS defines a regional center as “any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.”

If the investor is investing in an already-established regional center, he or she must submit:

  1. The most recently issued regional center approval letter;
  2. Documentation relating to the center’s approved capital investment structure and job creation methodology;
  3. Confidential information memorandum, including any amendments;
  4. Escrow agreement and escrow instructions; and
  5. Limited partnership agreement.

Otherwise the investor will have to submit a separate petition to designate a proposed entity as a regional center. Regional center proposals must contain:

  1. A clearly identified geographic area (any targeted employment area must also be identified as such);
  2. A detailed capital investment structure and evidence showing how it will directly or indirectly create at least ten (10) jobs per investor;
  3. Valid economic forecast predicting the economic impact of the regional center’s activities in its geographic area on (a) household earnings, (b) business services, (c) utilities, (d) maintenance and repairs, and (e) construction; and
  4. A detailed management structure showing how investment proposals will be evaluated, chosen, implemented and then managed.

All regional centers must provide updated information to the USCIS annually, and any material changes to the geographic area, capital investment structure or management structure will require an amended petition.

E-1/E-2/EB-5 Visa Options

E-1, E-2 or EB-5 options may be utilized as a mechanism to secure a visa through investment into the United States. Various factors, including nationality of the individuals, the type of treaty available, and the business involved, will influence the level of investment required. Each individual or business seeking to utilize one of these visas should contact an experienced immigration attorney to determine to develop a plan tailored to their specific needs.

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