E-1 and E-2 Visas

E-1 and E-2 visas are available to citizens of foreign countries that have a treaties of commerce and navigation, or a bilateral investment treaty providing for nonimmigrant entries, with the United States.  

The E-1 (“Treaty Trader”) visa is specifically designed for alien business owners, business managers, and employees who are required to stay in the U.S. for prolonged periods of time to oversee or work for an enterprise that is engaged in trade between the U.S. and the treaty country which qualified the Treaty Trader for the E-1 designation. 

The E-2 (“Treaty Investors”) visa is available to an alien who is a citizen or national of a treaty country and who wishes to enter the U.S. solely to develop and direct the operation of an enterprise in which he or she has invested, or is in the process of investing a substantial amount of capital. Specific criteria must be met to qualify for either visa.

E-1 and E-2 visas are based on different treaties, however, and depending on which country the beneficiary is from, he or she may not be eligible to apply for both visas. Bilateral Investment Treaties (BIT) allow for E-2 Treaty Investor status only, whereby Free Trade Agreements (including NAFTA/Fast Track) allow for both E-1 and E-2 visas.

For example, a beneficiary from Canada or Mexico would be eligible for both an E-1 and E-2 visa due to the North American Free Trade Agreement (NAFTA) between those countries and the United States. A beneficiary from Tunisia, however, would only be eligible for an E-2 visa because the treaty that exists between the U.S. and Tunisia is a BIT. Please refer to the chart below for a list of the specific countries that qualify for each visa.

Both E-1 and E-2 visa holders are initially allowed a maximum stay of two years. Requests for extension of stay can be filed and may be granted for periods of up to two years each. Notably, there is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted, as long as the alien maintains the intention to depart the U.S. when their status expires or is terminated.

There are three main requirements to apply for both E-1 and E-2 visas:

  1. A treaty must exist between the United States and the foreign country under whose treaty the E status is sought;
  2. Majority ownership or control of the investing or trading company must be held by nationals of the foreign country under whose treaty the E status is sought; and
  3. Citizenship of the foreign country under whose treaty the status is sought by each employee or principal of the company who is seeking the E status pursuant to the treaty.

For a current list of countries with which the United States maintains a treaty of commerce and navigation, please see below:

E-1 Treaty Trader Visas are available to petitioners from the following countries:

Africa: Ethiopia, Liberia, Togo
Asia: Republic of China (Taiwan), Japan, South Korea , the Philippines, Singapore, and Thailand
Australia: Australia
Central America: Costa Rica, and Honduras
Europe: Austria, Belgium, Bosnia Herzegovina, Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Macedonia, Netherlands, Norway, Poland, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom
The Middle East: Brunei Darussalam; Iran, and Israel, and Jordan, and Oman, and Pakistan, Turkey
North America: Canada, and Mexico
South America: Argentina, Bolivia, Chile, Colombia, Paraguay, and Suriname

General Qualifications for a Treaty Trader

To qualify for an E-1 (Treaty Trader) visa, an alien applicant must meet certain specific requirements, namely:

  1. The alien must be a citizen of a treaty country (refer to our chart on the General Description of E-1/E-2 page for a list of such countries);
  2. The alien must engage in substantial trade with the United States;
  3. The alien must engage in principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification (trade qualifies as “principal trade” between the U.S. and the treaty country, when more than 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.).

Please note that U.S.C.I.S. defines trade as:

“The existing international exchange of items of trade for consideration between the United States and the treaty country.”

This includes, but is not limited to, trade in goods, services, international banking, insurance, tourism, technology and its transfer, and so forth. Generally, trade involves a steady flow of trade items, through numerous transactions over time. The monetary value of transactions is considered, but greater importance is placed on conducting a greater number of transactions, with great overall value.

General Qualifications for the Employee of a Treaty Trader

Employees of 1) an alien holding an E-1 Treaty Trader visa or, 2) a qualifying enterprise or organization may also qualify for an E-1 visa.

To qualify for an E-1 visa as the employee of an individual treaty trader, an alien must meet set specifications:

  • The alien must be of the same nationality as the alien employer (thus, both being of the nationality of the treaty country);
  • The alien must meet the legal definition of an employee, i.e. an “individual who provides services or labor for an employer for wages or other remuneration”; and,
  • The alien must be engaged in executive or supervisory duties, or, if the alien does not meet that requirement they must be employed in a capacity that requires specific qualifications. Specific qualifications are defined by U.S.C.I.S. as specialized skills that make the employee essential to the functioning of the trade. As such, these skill can vary, but often include:
    1. Proven degree of expertise in the specific trade area
    2. Possession of unique skills related to the trade which others do not have
    3. Ability to command a certain salary level based on these skills

An alien can also qualify for an E-1 visa as the employee of a qualifying enterprise or organization. To qualify as such, the organization or enterprise must be at least 50% owned by persons of the nationality of the treaty country who would be coming to the U.S. for trade.  Further, those owners must maintain current nonimmigrant treaty trader status, or, if they are outside of the U.S., they must be classifiable as such. To qualify for an E-1 visa as the employee of a qualifying organization or enterprise, the alien must meet the same qualifications detailed above.

Family Members of E-1 Visa Holders

Certain family members of treaty traders and employees may also accompany the E-1 visa holder as dependents. An E-1 visa holder may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Notably, their nationalities do not need to be the same as that of the treaty trader or employee. 

E-2 Treaty Investor Visa:

General Qualifications for an E-2 (Treaty Investor) Visa

To qualify for an E-2 (Treaty Investor) visa, an alien applicant must meet specific requirements:

  1. The alien must be a national of a treaty country (refer to our chart on the General Description of E-1/E-2 page for a list of such countries);
  2. The alien must have invested, or be investing, a substantial amount of capital in an enterprise in the U.S.; and
  3. The alien must be seeking a U.S. visa solely to develop and direct this investment enterprise. This can be proven by evidencing that the alien owns at least 50% of the enterprise, or that he/she possesses operational control of the enterprise through a managerial position, etc.

The U.S.C.I.S. considers investment to be the placement of capital, by the treaty investor, into an enterprise with the intention to generate profit. Such investment can include funds or other assets.

Significantly, the capital must be subject to loss if the investment fails.  Additionally, the treaty investor must prove that the funds were not obtained from criminal activity. 

Please note that the U.S.C.I.S. defines a “substantial amount of capital” with consideration to:

  • The cost of investment compared to the total cost of either purchasing an established enterprise or establishing a new one;
  • Whether the investment is large enough to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Whether the investment is large enough to make it likely that the treaty investor will successfully develop and direct the enterprise.  Notably, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

Finally, the investment enterprise CANNOT be marginal. In other words, the investment enterprise must possess the present or future potential to generate more than enough profit to provide for the living expenses of the treaty investor and his/her family. Notably, a new enterprise can still qualify even if it does not currently meet this requirement. However, in such cases, the enterprise must prove this capacity within five years of the granting of the E-2 Treaty Investor Visa.

General Qualifications for the Employee of a Treaty Trader

Notably, certain employees of (1) an alien holding an E-2 (Treaty Investor) visa or (2) a qualifying enterprise or organization may also be eligible for an E-2 visa.

To qualify for an E-2 visa as the employee of an individual treaty trader, an alien must meet set specifications:

  • The alien must be of the same nationality as the alien employer (thus, both being of the nationality of the treaty country);
  • The alien must meet the legal definition of an “employee”;
  • The alien must be engaged in executive or supervisory duties, or, if the alien does not meet that requirement, they must be employed in a capacity that requires specific qualifications. Specific qualifications are defined by U.S.C.I.S. as specialized skills that make the employee essential to the functioning of the trade. As such, these skill can vary, but often include:
    1. Proven degree of expertise in the specific trade area;
    2. Possession of unique skills related to the trade, which others do not have; or
    3. Ability to command a certain salary level based on these skills.

An alien can also qualify for an E-2 visa as the employee of a qualifying enterprise or organization. To qualify as such, the organization or enterprise must be at least 50% owned by persons who are in the U.S. and of the nationality of the treaty country.  Furthermore, those owners must maintain current nonimmigrant treaty investor status or, if they are outside of the U.S., they must be classifiable as such. To qualify for an E-2 visa as the employee of a qualifying organization or enterprise, the alien must meet the same qualifications detailed above.

Family Members of E-2 Visa Holders

Certain family members of treaty traders and employees may also accompany the E-2 visa holder as dependents. Specifically, an E-2 visa holder may be accompanied or followed by his/her spouse and unmarried children who are under 21 years of age.  The nationalities of the dependents do not need to be the same as that of the treaty trader or employee. 

E-2 Treaty Investor Visa are available to petitioners from the following countries:

Africa: Cameroon, Congo ( cloth ) and the Congo (Jin), Liberia, Morocco, Egypt, Ethiopia, Senegal, Togo, and Tunisia
Asia: Bangladesh, Republic of China (Taiwan), Japan, South Korea, Kyrgyzstan, Mongolia, The Philippines, Singapore, Sri Lanka, and Thailand
Australia: Australia      
Central America:       Honduras, and Costa Rica, and Panama      
Europe: Albania Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, and Estonia
The Middle East:       Bahrain, and Iran, and Jordan, and Oman, and Pakistan, Turkey
North America: Canada, and Mexico
South America: Argentina, Bolivia, Chile, Colombia, Ecuador, Paraguay, and Suriname
The Caribbean Grenada, Jamaica, and Trinidad and Tobago

Due to the complexity of E-1 and E-2 visas, we urge you to contact us to discuss your situation. Immigration Solutions LLC can be reached at 617-536-0584, info@immsolutionsllc.com

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