NON IMMIGRANT VISAS

Treaty Traders & Investors

The following information describes the two types of non-immigrant visas for persons wishing to invest in or trade with a company in the U.S.: a Treaty Investor visa (E-2) or a Treaty Trader visa (E-1). Please note that neither of these visas is a substitute for an immigrant visa. Persons wishing to remain indefinitely in the U.S. should apply for the appropriate immigrant visa.

A national of a country with which the United States maintains a treaty of commerce and navigation who wishes to go to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country; 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, may qualify for a nonimmigrant Treaty Trader or Treaty Investor visa.

Requirements: Treaty Trader (E-1)

• The applicant must be a national of a treaty country; (see 9 FAM 41.51 N3)
  
• The trading firm for which the applicant is coming to the U.S. must have the nationality of the treaty country; (see 9 FAM 41.51 N3)
  
• The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade; (see 9 FAM 41.51 N6);
  
• The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality; (see 9 FAM 41.51 N6);
  
• The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify. (See 9 FAM 41.51 N13); and
• The applicant intends to depart the United States when the E-1 status terminates.

   

  Requirements: Treaty Investor (E-2)
  

  • The investor, either a real or corporate person, must be a national of a treaty country; (see 9 FAM 41.51.2)
    
  • The applicant has invested or is in the process of investing (see 9 FAM 41.51);
    
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with assets of the investment enterprise are not allowed; (see 9 FAM 41.51 N8.1.1) and
    
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment; (See 9 FAM 41.51 N9)
    
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise; (See 9 FAM 41.51 N10)
    
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States; (See 9 FAM 41.51 N11)
    
  • The applicant is in a position to "develop and direct" the enterprise (see 9 FAM 41.51 N12);
    
  • If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify. (See 9 FAM 41.51 N12 & N14); and
    
  • Applicant intends to depart the United States when the E2 status terminates.
    

  New Enterprise Applications
  
  To qualify for Treaty Trader (E-1) or Treaty Investor (E-2) status the enterprise must meet the requirements of the law for the designated category as outlined above.

  Prospective investors and E-visa applicants should always review regulatory requirements and seek professional advice from an immigration law attorney before submitting an application, if they feel that will help them organize their application and their business activities. At the same time, applicants should be aware that decisions about eligibility are made only by a Consul who reviews the application -- and then only after all of the information requested by the Consul has been received. Applicants should never rely on prospective business partners for immigration advice.

  New employees for companies that currently hold ‘E’ status
  
  We require all the forms and information detailed above for each applicant together with a brief narrative of applicant's quality/suitability for the position and an organization chart showing the employee position in the enterprise.
  
  If the company's treaty trader/investor status is about to expire, all corporate documentation needs to be updated and resubmitted; this information is to include latest U.S. tax returns and financial reports. Similarly, if the DS-156E reflects changes to information previously provided, then the relevant updated documentation needs to be included with the application.

  Revalidation of a company’s ‘E’ status
  
  To revalidate ‘E’ status for the enterprise we require: a DS-156E duly completed (changes to detail on previous DS-156E need to be documented), updated corporate documentation, copies of most the recent U.S. tax returns and financial report, W2 (for investors with 10 employees or less) and letter from the company summarizing its performance to date and outlining future plans.

  How to apply

   

  An applicant for a Treaty Trader (E-1) or Treaty Investor (E-2) visa must first establish that the trading enterprise or investment meets the requirements of the law. An ‘E’ visa application consists of "Non-immigrant Treaty Trader/Investor Application form" DS-156E and all required company documentation (see links below). For the investor or employee we require a completed visa application form DS-156 (http://evisaforms.state.gov) with a photograph, a supplemental nonimmigrant visa application form DS-157 (for all males between 16-45 years of age and all male and female third country nationals), the visa application fee, passport and statement of intent to depart the United States on termination of ‘E’ status.

   

  On the day of interview, please bring all required documents for submission.  You will be fingerprinted and briefly interviewed on the day of your scheduled appointment.  However, except in rare cases involving established ‘E’ enterprises seeking renewal of status, most applicants will be called in for another interview after the adjudicating officer has had time to review the submitted documentation.

  Review of corporate files may take between two to four weeks.  Renewals for employees and new applicants take up to three weeks. These time frames are approximations only; processing may be longer or shorter depending on our workload and the quality of the material submitted. 

  Spouses and children

  Spouses and unmarried children under 21 years of age, regardless of nationality, who wish to accompany or join the principal visa holder in the United States for the duration of his/her stay require derivative E visas. If applying separately from the principal, a copy of the marriage certificate and/or birth certificate(s) for the child(ren) will be required. Spouses and/or children who do not intend to reside in the United States with the principal visa holder, but visit for vacations only, may be eligible to apply for visitor (B-2) visas.

  Time Limits

  Holders of E visas may reside in the United States until their visas expire and provided that they work for the same employer.

  U.S. Port of Entry

  Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection Agency (CBP) has authority to deny admission. Also, the period for which the bearer of a treaty trader or investor visa is authorized to remain in the United States is determined by the CBP, not the consular officer. At the port of entry, a CBP official validates the Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. Those persons who wish to stay beyond the time indicated on their Form I-94 must contact the U.S. Citizenship & Immigration Services (CIS) to request Form I-539, Application to Extend Status. The decision to grant or deny a request for extension of stay is made solely by the CIS.
  
  Time Limits
  
  Holders of ‘E’ visas may reside in the United States as long as they continue to maintain their status with the enterprise.