Frequently Asked Questions for E-1/E-2 Treaty Trader or Treaty Investor Visa

E-1 visas are available to Treaty Traders, and E-2 visas are available to Treaty Investors. Both categories require that the United States maintain a treaty of commerce and navigation with the foreign country that allows trade and/or investment in the United States.

The E-1 visa, known as the treaty trader visa, is available to nationals of the treaty partner who conduct a substantial volume of trade with the United States.

Applicants must satisfy specific requirements under immigration law to qualify for a treaty trader (E-1) visa. Those requirements are:

1. The applicant must hold the nationality of a treaty country.
2. The firm employing the applicant in the United States must hold the nationality of the treaty country.
3. The international trade must be “substantial,” meaning that there is a sizable and continuing volume of trade.
4. The trade must be principally between the U.S. and the treaty country, which means that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality.
5. Trade means the international exchange of goods, services, and technology. Title to the trade items must pass from one party to the other.
6. The applicant must serve in a supervisory or executive capacity, or hold highly specialized skills essential to the firm’s efficient operation. Ordinary skilled or unskilled workers do not qualify.

The term “trade” covers the exchange, purchase, or sale of goods and/or services. It is read broadly and may include banking, tourism, transportation, communication, consulting services, design and engineering, and insurance.

For traders, “substantial” means more than 50 percent of the activity; for investors, it means an amount sufficient to establish a viable rather than marginal enterprise. Individual transactions need not be large if they are numerous, and at least 51 percent of the total volume of trade must be between the United States and the treaty country.

Goods are tangible items of merchandise with intrinsic value, excluding money, securities, and negotiable instruments. Services are economic activities whose output is something other than a tangible good.

If most of the trade volume shifts from the treaty trader to a third country, the entrepreneur may become ineligible for the visa.

The requirements of E-2 Treaty Investor visa are:

1. The applicant must hold the nationality of one of the treaty countries;
2. Nationality of the treaty country must be held by the individual employee and/or the business;
3. The applicant must have already invested, or must be actively in the course of investing;
4. The enterprise must be a genuine commercial enterprise that is real and operating;
5. The applicant's investment must be substantial;
6. The investment must exceed a marginal one made only to earn a living;
7. The applicant must be positioned to “develop and direct” the enterprise;
8. An applicant who is an employee must be destined for an executive or supervisory position, or possess skills essential to the firm’s operations in the United States; and
9. The applicant must intend to leave the United States once E-2 status terminates.

For the enterprise to qualify as a national of a treaty country, nationals of that country must own at least 50% of it, and the alien investor or employee must also be a national of that country.

The investment must be substantial and must not be marginal. The law sets no particular amount of money for substantiality, the term itself is not clearly defined, and no mathematical formula yields its meaning. The Department of State regulations frame the question of a substantial amount of capital this way:

1. Substantial proportionally—that is, relative to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
2. Enough to secure the treaty investor’s financial commitment to operating the enterprise successfully; and
3. Large enough to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

The regulations also indicate that “whether an amount of capital is substantial in the proportionality sense is understood in terms of an invested sliding scale; that is, the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.”

As a general guideline, the minimum cash required to meet the test of substantiality is $100,000 U.S., provided that amount is proportional to the cost of acquisition. Many U.S. consuls would regard a smaller investment as insubstantial per se unless the applicant establishes that the business does not require more capital than was invested and that the sum invested represents all or almost all of the price of acquisition. That figure is only a rule of thumb, however, and must be analyzed in light of the type of business, the investment, the proportion of capital to acquisition cost, the rate of return, and all other factors.

A large capital investment of $1,000,000 or more will be presumed substantial because of its sheer size, even if it does not approximate the recommended percentages.

The investment must also be active, not passive holdings such as stock or real estate. It must involve funds and assets that place the investor personally at risk; loans secured by the assets of the enterprise are not acceptable.

Treaty aliens are admitted to the United States for an initial period of two years, regardless of how much validity remains on the foreign national’s visa; even with a validity period of one week remaining, the alien may be admitted for a full one-year period. On every trip abroad, a treaty alien is readmitted for a new period of two years. Thus, if you travel abroad at least once a year, you need never obtain extensions of your U.S. stay through an application to USCIS.

If you do not travel during a two-year period, you must apply by mail to the USCIS to extend your nonimmigrant stay. The application is made on Form I-129. Family members of the E alien are not included in the extension-of-stay application on Form I-129, and they must submit accompanying extension applications on USCIS Form I-539, the standard nonimmigrant application for extensions of stay.

Extension requests filed on Form I-129 (and the accompanying I-539 forms for dependents) must be filed with the California Service Center, regardless of the location of employment. USCIS may grant extensions of stay in increments of two years, with no outer limit on the total period of stay for the E visa holder.

The E-visa holder may engage in employment activities that are incidental to the terms and conditions of the nonimmigrant classification. The terms and limitations of the authorized employment activity are annotated on the alien’s E visa.

Yes. Spouses of E-1 and E-2 nonimmigrants may apply for employment authorization.

The usual method for obtaining treaty status is to apply for an E nonimmigrant visa at a U.S. consulate abroad. The E visa application must be accompanied by documentation of the principal requirements for treaty trader or investor status. This standardized version of the form, currently designated Form DS-156E, has become mandatory at consulates that issue E visas.

Foreign nationals already in the United States in a different nonimmigrant category may apply to the USCIS for a change of nonimmigrant status to E-1 or E-2 classification. This application is made on USCIS Form I-129, accompanied by the same documentation that would accompany a nonimmigrant visa application.

Form I-129, along with any accompanying I-539 forms for dependents, goes to the California Service Center wherever the employment is located.

Yes. E petitioners may seek expedited processing of their cases, and such cases must be adjudicated within 15 business days. Petitioners requesting premium processing must submit Form I-907 and the $2,805 fee required for such requests. That fee is separate from the standard filing fee for the I-129 petition.

Once the necessary papers for an E visa application are complete, several steps follow. The nonimmigrant visa application package must first be submitted to the U.S. post abroad. Some consulates prescreen the application before an interview, and applicants may be required to submit further documentation during that process. The next step is the visa interview with the applicant, although the consular officer may want to meet initially only with the company representative or individual investor before interviewing the persons or employees actually coming to the United States, in order to resolve first the eligibility of the trading or investment enterprise for treaty classification. At many consulates, treaty qualification for the company and visa issuance for the first visa applicant can be handled in the same interview. If prescreening has already qualified the company or investment for treaty purposes, the interview will focus mainly on the admissibility of the employee and his or her family members as nonimmigrants.

The E visa is issued for a period of validity and a number of entries based on reciprocity between the United States and the alien’s home country. For most treaty countries, a five-year period of visa validity and a multiple entry visa are typical. The maximum periods of validity for E visas from each treaty country are listed by country in volume 9 of the Foreign Affairs Manual.

Family members of a foreign national who qualifies for E-1 or E-2 status fall within the same subcategory as the principal alien. Unlike many other nonimmigrant categories, no separate subcategory exists for family members alone.