E-1 (Treaty Trader) & E-2 (Investment) Visas

 

For most foreign nationals wanting to permanently live and work in the United States, the ultimate goal is to obtain a “green card”or permanent residency status. The most common method of obtaining permanent residency is through sponsorship by an employer or family member.

For wealthy individuals, a $1 million investment in a business that creates or preserves at least 10 full-time jobs is also an option. That amount is reduced to $500,000 where the business is located in areas of high unemployment or other qualifying rural areas.

However, where these options are unavailable, foreign nationals from countries with investment or commerce treaties with the United States may still obtain a visa to live and work in the United States by either investing in a business in the United States (E-1 visa) or by conducting trade with the United States (E-2 visa). The requirements of the E visa may be found in §101(a)(15)(E) of the Immigration and Naturalization Act; 8 U.S.C.A. §1101(a)(15)(E).

The E visa category may be used by various types of companies, whether owned by individuals or large multinational corporations, and may be used by the company’s principals or by its employees. Although the E visa is considered a non-immigrant visa, unlike other nonimmigrant visas, it may be renewed indefinitely and the E visa holder may apply for a green card through the business supporting the E visa.

There are three basic requirements for obtaining an E-1 or E-2 visa. First, a treaty must exist between the United States and the foreign national’s home country. Germany, Italy, Switzerland, United Kingdom, Taiwan, Pakistan, Iran, Japan and Australia are just some of the countries that have treaties with the United States.

Second, majority ownership or control of the investing or trading company must be held by nationals of the foreign country. Third, every employee or principal of the company seeking E visa status must be a citizen of the foreign country where the company is based.

An E-1 or Treaty-Trader visa is for individuals involved in the exchange, purchase or sale of goods, services or merchandise. Services include but are not limited to technology architecture, engineering consulting or accounting services. The trade must principally be between the United States and the treaty country. That is, more than 50 percent of the total volume of international trade must be between the U.S. and the treaty country.

Also, the amount of trade must be sufficient to ensure a continuous flow of international trade between the U.S. and the treaty country. Finally, the trade in goods and services should be “substantial” in terms of value, volume or a large number of small transactions. There is no minimum dollar amount necessary for the investment to be considered “substantial” and this requirement is determined on a case by case basis. For example, the import or export of a million widgets at $0.50 per widget would be considered substantial. However, importing three machines at $333,000 per machine may not be considered substantial.

The E-2 or Investment visa is available for investors in a new or existing U.S. business. The investor must play an active role in the development and direction of the business. As with the E-1 visa, the E-2 investor must show that a “substantial” investment or funds are available and committed to the investment. Again, the “substantial” requirement is determined on a case by case basis. Investment in a manufacturing plant would require a higher dollar investment than investment in a consulting business, which may simply require a computer, facsimile and a telephone.

The E visa application may either be filed with the United States Citizenship and Immigration Service for those already in the United States or with a U.S. consulate for those foreign nationals outside the United States. If filed with the USCIS, the application waiting period is generally several months. The USCIS offers an option for premium processing. For an additional $1,000 fee, the USCIS will process the application in 15 days. If filed with a U.S. consulate, it usually takes a few days for the visa to be issued after the interview. Wait times for interviews vary by consulate.

The E visa also has several advantage over other nonimmigrant visas for the families of E visa holders. First, the spouse and children (unmarried and under 21) of E-1 or E-2 visa holders are entitled to the same E-1 or E-2 classification as the principal. They also may apply for work authorization once they arrive in the United States and may renew their E visa status indefinitely as long as the primary E visa holder maintains E status. Finally, these dependents may also apply for permanent residency with the primary E visa holder.