E1 and E2 Visas
Treaty Trader and Treaty Investor Visas
Understanding the E-1 Treaty Trader Visa
The E-1 visa allows “treaty traders” to qualify for a specific non-immigrant visa. Only nationals from certain countries qualify for these unique visas, which differ from normal immigration visas. With an E-1 visa, traders and their employees can engage in international trade while also living in the United States with their spouses and dependent family members.
The Purpose of the E-1 Treaty Trader Visa
The E-1 trader visa allows those who engage in international trade to live and work in the United States while they engage in international trade. The underlying purpose of this visa is to encourage trade and investment, in addition to promoting peace and good relations with other countries.
Must-Know Definitions for the E-1 Treaty Trader Visa
Understanding the qualifications for an E-1 visa requires that you recognize some legal terms used in the definition. Some of the most important definitions include the following:
- Trade: The international exchange of goods, services, funding-related services, and more
- Substantial Trade: The continuous flow of international trade, which includes numerous transactions over time
- Principal Trade: Over 50% of the total volume of international trade from a treaty country is with the United States
- Executive or Supervisory Character: The employee involved has supervisory control and responsibility of a company’s operation or some major portion of it
- Special Qualifications: An employee has specific skills or knowledge that makes his or her services essential to the operation of a company
Who is a Treaty Trader?
Treaty traders can be either individuals or companies. Companies can allow their employees to apply for an E-1 visas as treaty traders if they meet certain requirements.
Treaty traders can only apply for an E-1 visa if they meet the following qualifications:
- The applicant must be a national of the country that has a trade treaty with the United States
- Deal in substantial trade
- Conduct principal trade between the United States and the treaty country
While these requirements are based on the actions of the employer or business, the employee must also meet certain qualifications as well. These include:
- Be the same nationality as the employer (who also has the same nationality as the treaty country)
- Be considered an “employee” under relevant law (instead of an independent contractor or consultant, for example)
- Either be someone who is considered an executive, has supervisory characteristics, or has special qualifications
Understanding the E-2 Treaty Investor Visa
The E-2 visa is specifically designed for international investors. They must inject funds or another form of investment into the United States to qualify for this type of visa. Like the E-1 visa, this visa is designed to promote trade and commerce in the United States while also encouraging peaceful and productive international relationships.
The Purpose of the E-2 Treaty Investor Visa
Foreign investment is important to the United States economy. This visa permits foreign investors to work and live in the United States while also infusing the country with money and jobs. It is a win-win for both countries involved.
Must-Know Definitions for the E-2 Investor Visa
Like the E-1 visa, the E-2 visa uses specific definitions to set out the qualifications for an E-2 visa. These include:
- Investment: Capital, funds, or other assets are put into place and risked in the commercial sense in the hopes of generating a profit. The funds cannot be obtained from criminal activity, and they must be subject to the potential for all or total loss if the investment activity is not successful.
- Substantial Amount of Capital: The total cost of the investment or financial commitment must be enough to support the enterprise. This definition is deliberately broad so that it can be adjusted based on the industry and the type of investment activity involved.
- Bona Fide Enterprise: The investment involved must be a real commercial undertaking, whether it is an operating activity or a startup that will create goods or services for profit. It is required to meet the legal specifications for doing business wherever it is located.
The definitions listed above for “executive or supervisor character” as well as “special qualifications” also apply to the E-2 visa.
Who is a Treaty Investor?
Those who qualify for E-2 classification will meet the following requirements:
- They are a national of the country that has a treaty with the United States
- They have invested or are in the process of investing a substantial amount of capital in a bona fide enterprise in the U.S.
- They are seeking to enter the U.S. to develop an investment enterprise
The employee investor must meet the same qualifications as the E-1 visa, listed above.
How Do I Apply for an E-Visa?
The application process for an E-visa will vary depending on where you are located—whether it is in the United States or in a treaty country.
If you are in the United States already…
As long as you are in the United States in a valid nonimmigrant status, you can apply for an E-visa using a Petition for Nonimmigrant Worker (Form I-129). However, an employee does not fill out this form him or herself. Instead, the employer creates this form on behalf of the employee.
If the worker is not in the United States with valid nonimmigrant status, he or she will need to leave the country to apply for an E-visa.
If you are outside of the United States…
Those outside the United States go through the application process by using Form DS-156E. You will have this form processed by United States consulate nearest your place of residence.
Treaty Trader/Treaty Investor Visa FAQs
If I am a self-employed professional, can I gain E2 or E1 visa status?
- You can gain E2 and E1 as a self-employed professional as long as you employ other people. As an applicant, your goal should be to come to the United States to develop your business and create employment for other people as well.
How long can I stay in the United States with E2 or E1 visa status?
- As long as your business continues within the United States is in existence, you can extend your visa indefinitely.
What is the minimum amount of trade/investment needed to qualify for E2 and E1 visa?
- Currently, there is no set minimum level of trade/investment. However, the likelihood of your application being successful diminishes with lower trade and investment.
If my employees or I do not qualify for E2 or E1 visa status, is there an alternative?
- If you or your employees do not qualify for an E2 or E1 visa, the L1 visa may be an option, as well as the H-1B visa. Furthermore, another option may be the EB-5 Immigrant Investor, although this alternative tends to take longer and cost more.
Get Help from an Immigration Attorney
If you are seeking to gain E2 or E1 visa status for you or your employees, contact our experienced corporate immigration attorneys at David Hirson & Partners, LLP or give us a call at +1-949-383-5358.