E1-E2 Status

Overview

Treaty Trader and Treaty Investor visas are available to foreign nationals of countries with which the U.S. has a treaty of “friendship, commerce and navigation,” (* for list of countries see bottom of page) or similar agreement. Two classes of visas are available to nationals of these countries. The E-1/Treaty Trader visa applies to persons who engage in trade between the U.S. and their home country. The E-2/Treaty Investor visa is available to persons coming to the U.S. to develop and direct businesses in which they are investing or have invested a substantial amount of capital. A person may qualify as either a principal trader or investor or as an employee of a trader or investor company.

Key benefits of the Treaty Classification

• There is no limit to the number of extensions of stay that a Treaty Trader or Treaty Investor may be granted. Therefore, E status may generally continue as long as the underlying trade or investment continues. Therefore  a potentially indefinite stay is possible.
• The accompanying spouse fo an E2 principal or employee can apply for and obtian work authoritaion during the entire pendency of their authorized stay
• E visas can be obtained directly form the US Embassy in the home country of the applicant. This can often be a relatively quick process

Requirements

The following requirements must be met for both E-1 and E-2 status:

1. The person seeking E status must be a national of a foreign country with which the U.S. has a treaty of “friendship, commerce and navigation,” a comparable bilateral investment treaty or other multilateral trade arrangement.
   
2. The person seeking entry in E status must be coming to the U.S. to engage in trade or to undertake a qualifying investment or to work in a “qualifying function” with the trade or investment enterprise (generally an executive or managerial position)

Substantial Investment Requirement for E-2 Status

A person may qualify as a treaty investor if he or she (1) has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States; (2) is seeking entry solely to develop and direct the enterprise; and (3) intends to depart the U.S. upon the expiration or termination of E-2 treaty investor status.

So how much of an investment is 'substantial'?

There is no hard and fast answer to this frequently asked question-in fact the US authorities have never put a fixed figure on what investment is considered substantial.

In most cases and investment of $100,000 would be deemed sufficient, with a bare minimum of around $50,000 although even this figure could be reduced in certain circumstances.

“Investment,” for purposes of E-2 status, means placing capital, including funds and other assets, at risk in a commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. Further, the capital must be irrevocably committed to the enterprise.

In addition, the capital invested in the treaty enterprise must be substantial. A substantial amount of capital constitutes an amount which is:

(1) Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;

(2) Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

(3) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital.

The enterprise may not be marginal

To qualify for E-2 status, an enterprise may not be marginal. An enterprise is marginal is it does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income, but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future income-generating capacity should generally be realizable within five years from the date the alien commences the normal business activity of the enterprise.

NOTE: Normally the applicant will need to show that the enterprise is currently employing US citizens or will do within a reasonable amount of time.

Substantial Trade Requirement for E-1 Status

To qualify for E-1 status, a person must intend to enter the U.S. to carry on substantial trade. In addition, the trade must be international in scope and principally (i.e. more than 50%) between the U.S. and the person’s country of nationality.

Substantial trade consists of an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. A single transaction is not sufficient, regardless of the monetary value of the transaction.
There is no minimum requirement with respect to the monetary value or volume of each individual transaction. In the case of smaller businesses, an income derived from the value of numerous transactions, which is sufficient to support the treaty trader and his or her family, constitutes a favorable factor in assessing the existence of substantial trade.

Trade is not restricted to trade in tangible products. Services may also constitute trade.