Overview: E Visas for Traders and Investors

The Treaty Trader / Investor Visa (nonimmigrant E classification) is designed for the benefit of nationals of a country with which the U.S. has a treaty of commerce and navigation, or a similar agreement. The E classification is divided into two categories. E-1 is for individuals coming to the U.S. to carry on substantial trade. E-2 is for individuals coming to the U.S. to invest a substantial amount of capital or to direct and develop the business operations of an entity in which the individual has already invested funds. A person may qualify as the principal trader or investor or as an employee of a trader or investor company having the same nationality. There are no numerical limitations on E-1/E-2 admissions.

What Countries have Bilateral Treaties with the U.S.?

The list of countries with bilateral treaties with the U.S. is actually very long. The countries range from Japan to Australia, and most of the European Union, to some less-obvious nations, such as Iran, Pakistan, and Taiwan. Most of the countries listed have treaties that cover both the E-1 and E-2 categories, but some only cover one or the other.

Note that the list of treaty countries changes often as new treaties are signed and ratified continually. You can find the most recent list on the U.S. Department of State (DOS) website.

Requirements Applying to Both E-1 and E-2

The individual applying for the E-2 visa must be a national of a treaty country. Additionally, if the person is employed and doing business on behalf of a company, the employing company must be from the same treaty country. If this is the case, the company’s nationality almost always is determined by its ownership, though there are special rules for publicly traded companies. A company must be at least 50 percent owned by individuals with nationality from the treaty country and who are not lawful permanent residents of the U.S. If these owners are in the U.S., they must be in E-1 or E-2 status.

Additionally, in general, unskilled workers usually do not qualify for the E-1 or E-2 category. Rather, these visas are intended for executives, managers, or others with skills and experience that are essential to the efficient operation of the enterprise. Recent adjudication trends also place increased emphasis on documentation of lawful source of funds, business viability, and compliance with evolving security and vetting procedures.

Additional Requirements Specific to E-1 Traders

The international trade must be substantial in the sense that there is a sizable and continuous flow of trade, and more than half of the trade activity must be between the U.S. and the treaty country. The trade may be in a variety of areas such as products, services, or technology, but these items must already exist.

Additional Requirements Specific to E-2 Investors

For E-2 investors, the investment must come from the investor and the money must be “at risk;” so, for example, it cannot be a loan that is secured by the assets of the business itself. The investment also must be “substantial,” meaning that it is enough to provide a sufficient infusion of capital or credit to permit the business undertaking to be successful. There is no fixed minimum dollar amount; the amount is evaluated in proportion to the business. Additionally, the investment must be considered active; this means that a bank account, undeveloped land or stocks, or a not-for-profit organization will not be sufficient. Lastly, it is important to note that the E-2 visa holder can be an investor, or an employee of the individual or company that is making the investment.

Recent Developments Affecting E-2 Investors and Their Families

There have been a few developments surrounding the treaty visas in recent years. For one, spouses of E visa holders are now given work authorization incident to status, meaning they do not need to apply separately for employment authorization.

The most significant update comes into play when someone obtains citizenship of a country that has a bilateral treaty with the U.S. If a person obtains citizenship to be considered a citizen of a country that has a bilateral treaty with the US, the person must be “domiciled” in the treaty country for a “continuous period of not less than three years at any point before applying” for the visa. In other words, the individual actually has to live there for a continuous period of three years in order to qualify.

Conclusion

In summary, the E-1 and E-2 visa categories remain valuable options for traders and investors seeking to engage in business activities in the United States. However, evolving policies, including updated adjudication practices and the domicile requirement, make it increasingly important for applicants to stay informed and plan carefully. By understanding both the longstanding requirements and recent developments, individuals and businesses can better position themselves for success in obtaining and maintaining E visa status.

While some aspects of immigration have changed significantly in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.

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