The E-1 Treaty Trader and E-2 Treaty Investor Visa
Nationals of a country with which the United States have a Treaty of Commerce and Navigation can apply under this category. The non-immigrant alien can come to the United States to carry on substantial trade, including trade in services or technologies, principally between the United States and the treaty country (E-1 Visa) or to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital (E-2 Visa).
To qualify under the Treaty:
Treaty Company’s Ownership
The company or individual engaged in substantial trade or making a substantial investment in the U.S. must have the same nationality as the treaty country.
- The nationality of a company engaging in substantial trade or used for an investment is the nationality of the persons who own at least 50% of the company. The place of incorporation or principal place of business is not relevant to determining the nationality of the company.
- The nationality of the persons owing the company is their country of citizenship.
Nationality of the Principal Trader, Principal Investor, or Essential Employee
A Principal Trader or Investor and an Essential Employee of the Treaty Company must have the same nationality as the treaty company.
Special requirements for traders (E-1)
- The individual of the company has the nationality of the treaty country i. e. at least 50% of the company must be owned by a national of the treaty country.
- There must be substantial (more than 50%) ongoing trade between the U.S. and the treaty country. Trade is meant to include the exchange, purchase, or sale of goods or services or the transfer of technology.
- The non-immigrant alien is either the Principal Trader, who is coming to the U.S. to engage in substantial ongoing trade, or an employee with supervisory functions, or an employee with skills essential to the company.
Special Requirements for Investors (E-2 Visa)
- The Principal Investor needs at least 50% ownership of the investing company and the nationality of the treaty country.
- Active investment. The investor must have made or be in the process of making an irrevocable commitment of funds into an active, commercial investment.
- Substantial investment. Only those financial transactions in which the investors own resources are at risk will be considered.
- Marginality. The investment needs to generate a return that is greater than just covering the cost of living for the principal investor and his family. The investment should create job opportunities for U.S. workers.
- Essential role in the company. The treaty investor must have a key position within the company, either as the investor, who will develop and oversee the investment, or as a supervisory manager, or as a specially trained, highly qualified employee necessary for the development of the investment.
Under both the E-1 and the E-2 visa category, a qualifying company can employ “essential employees” from the Treaty country if this person will have supervisory and managerial functions in the company and/or “possess skills that are essential to the efficient operation of the business”. Accordingly, the candidate’s qualifications and the necessity to employ the foreign national over a U.S. worker (i.e. the availability of a U.S. worker or the possibility to train a U.S. worker) are closely scrutinized.
E Visas are generally applied for directly at a U.S. Embassy or Consulate at the non-immigrant alien’s country of citizenship or residency (visa granted for 2 years initially, further extensions of up to 5 years possible as long as investment or trade activity is maintained), or with the U.S. Citizenship & Immigration Services (visa granted only for 2 max. years). Filings in the U.S. can ask for Premium Processing by paying an additional fee. The visa can be renewed indefinitely as long as the individual and the company remain qualifying.
The spouse and unmarried children under the age of 21 may obtain a “Dependant/Beneficiary” E visa. The E spouse and children can attend school in the United States and the E spouse can obtain an independent employment authorization (E children are not permitted to be employed under their dependant beneficiary status).
The normal procedure for an E-1 or E-2 essential employee would be the labor certification process. However, E-1 Principal Traders and E-2 Principal Investors cannot file labor certifications because of their controlling interest in the qualifying company. However, there are other options for a Green Card.
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