A large capital market and resilient economy make the U.S. a land of opportunities. So, if you are considering coming to the United States to trade in services, technology, or make substantial capital investment, you shouldn’t miss the chance. However, you must obtain a non-immigrant E treaty trader/treaty investor visa. The requirements and process of obtaining these visas are involved, which is why the California Immigration Attorney is here to offer guidance.

The E1 and E-2 classifications consist of treaty traders and investors, respectively. These parties qualify to be in the U.S. under a bilateral treaty of commerce, friendship, or navigation between the U.S. and foreign country, which the treaty trader or investor is a national. Nationals or citizens, in this case, might refer to individuals or corporations. The authorities in the treaty country, which the E treaty trader or investor is a national, establish their nationality.

In the case of an organization or company, ownership is tracked to owners of the company. For you acquire this visa category, you must be coming to the U.S. for any of the following reasons:

  • Carry out or participate in substantial trade, including exchanging products, services, technology, or qualifying activities, by and broad between the U.S. and a treaty country. A treaty country refers to an overseas country for which the United States has a qualifying treaty friendship or commerce.
  • Grow or direct the function or working of a business or establishment for which you have invested a substantial capital amount.

Suppose as an E-1 or E-2; you have a legal spouse and unmarried children below 21 years. They are eligible to accompany you to the U.S. through the same status. Some of the enterprises that constitute trade under the E category include:

  • Overseas banking
  • Transportation
  • Communications
  • Insurance
  • Tourism

Overview of E-1 Category

If you are a foreign citizen coming to the U.S. to carry out substantial trade solely, you can apply for an E-1 visa. The trade you are coming to engage in must consist of the international exchange of trade items between the U.S. and the treaty country.

Suppose you are already in the U.S. You can petition for a nonimmigrant worker by filling and submitting Form I-129 with the USCIS. The petition is aimed at seeking a change of status or extending the current stay. However, if you are out of the United States, you must apply for an E-1 visa at your home country’s consular office. 

The purpose of these visas is to allow you and other people carrying out international trade to live and work in the U.S. as they continue with their business. However, the core objective is to encourage trade and investment and foster peace and friendship among the treaty countries.

E1 category has many requirements that one must understand for a successful application. However, to understand these requirements needs you to understand some of the legal jargon used. Some of the crucial definitions that you might want to understand include:

Trade - Immigration laws define trade as the international exchange of trade items like goods, services, and other qualifying activities.

Substantial trade - This is the amount of trade sufficient to ensure an uninterrupted flow of international trade items consisting of numerous transactions over a particular duration.

Principal trade - Trade exists principally between the U.S. and the treaty company if 50 percent of the total international trade volume from the treaty country is with the U.S. or conducted between the U.S. and the treaty country the trader’s nationality.

Items of trade - They include but not by way of limitation to transportation, products, services, monies, insurance, adverting, accounting, design, newsgathering activities, technology, tourism, and data processing.

Criteria for Eligibility

As mentioned earlier, a treaty trader can be a person or an entity. Suppose it’s an entity. In this case, their employees can apply for E-1 visas, but if they meet particular requirements. To be eligible for E-1 classification, treaty traders must meet the following criteria:

  • You must be a national or citizen of a treaty country
  • The trading enterprise for which you are coming to the U.S. must have the treaty country’s citizenship. This means that the persons who own 50 percent of the company must be nationals of the treaty country.
  • The international trade between the United States and the treaty country should be substantial, which means a sizable and continuous flow of trade volume.
  • Fifty percent of international trade exists between the U.S. and treaty countries, known as principal trade.
  • You intend to depart the U.S. upon the expiration of your E-1 status

While the company or enterprise must meet the above requirements, employees of these companies that are coming to the U.S. as treaty traders must meet the following criteria:

  • As an employee, you must have the same nationality as your employer
  • You must be an employee as per the relevant law and not a consultant or independent contractor.
  • You must be coming to the U.S. to fill an executive or supervisory position or possess special skills critical in the United States’ operations of the company.
  • You intend to return to the U.S. upon the lapse of the treaty trader status

Overview of E-2 Classification

E-2 category allows foreign citizens (individuals and entities) whose home country has the treaty to come to the U.S. solely to develop or direct the functioning of a business they have invested in or are actively involved in investing a substantial amount of fund. The treaty investor category is a non-immigrant visa, allowing treaty investors from treaty countries to come to the country and engage in considerable capital investment and trade activities.

The investment in question must place legally acquired, owned, and controlled capital at commercial risk with a profit goal and must be subject to losses if the investment fails. Suppose it’s a new business that you are investing in. In that case, the amount of investment must be considered necessary to set up a company in the U.S. Further, if the enterprise already exists, the amount of capital you are investing in the United States must be more than 50 percent of the entire value of the company.

It’s worth noting that there is no set minimum level of investment for these visas. However, if you invest low capital, the chances of qualifying for the E2 category are minimal. The amount of capital investment must be substantial to justify the treaty investor’s presence in the United States. Additionally, a significant part of the investment must have been made before applying for the treaty investor visa.

Criteria for Eligibility

To qualify for E-2 classification as an individual or corporation, you must meet the following requirements:

  • As a treaty investor, you must have citizenship of the treaty country, either as an individual or company.
  • If you are in the U.S. already, you must possess a valid treaty investor visa
  • You must invest or be in the process of investing a significant amount of investment funds or asset commitment in a business in the U.S. The amount of capital invested must be sufficient to ensure the smooth running of the enterprise.
  • The business must be subject to losses if it doesn’t succeed, or the investment must be at risk commercially. Further, you are not allowed to secure loans with business assets.
  • Your coming to the U.S. must be to build or direct the working of a business. The enterprise should generate sufficient income to be a livelihood source for the treaty investor and immediate family. The revenue generated from the investment must provide a living for the treaty investor and dependents for a minimum of five years after receiving a treaty investor visa or significantly impacting the U.S. economy.
  • You must have direct control over the investment or own at least half of it
  • If it’s a corporation, at least 50 percent of its owners must be treaty country’s nationals
  • The corporation or enterprise must be active, real, and commercially operational. Paper entities, speculative or idle investments do not qualify as active or functional enterprises. Also, if the investment funds are in the bank, they are not considered to be at any risk of loss because they haven’t been committed.

Suppose you are an employee of the treaty investor. In this case, you must meet the following conditions:

  • You must have the same citizenship as your employer
  • Meet the regulation definition of an employee in the United States
  • You must be coming to the U.S. to hold an executive or supervisor position, overseeing functions, or significant business components. Suppose you are an unskilled employee and work with ordinary skills. In that case, you might not be eligible for the E2 classification unless you possess special qualifications essential to the enterprise’s success.

Application Process for E Treaty Trader or Investor Living in the U.S.

The E1 and E-2 category application depend on whether you are living in or outside the United States. If you are already living in the U.S. with a valid visa, all you need is to file a nonimmigrant worker petition using Form I-129 with the USCIS to request a change in status, extend your stay, or change employment.

Take note that if you change your status to E-2 classification while already in the U.S., you won’t be able to travel in and out of the U.S. You can only stay and work in the U.S. until you complete your stay.

Suppose you are living in the U.S. with an invalid E visa. You will need to depart the country and make a new application for the treaty investor visa in your passport through the U.S. consulate in the foreign country before entering the U.S. to work as an E treaty investor.

Application Process for E Treaty Traders or Investors Outside the United States

If you are outside the U.S., a petition is not necessary. All you need is to fill out Form DS 156-E at the U.S. consular office that accepts non-immigrant visa applications in your home country. You can also complete a Form DS-160 online and attach a passport size photo. If you are between 14 to 79 years, you must schedule an interview with the consular office to apply.

Before the interview, ensure you pay the application and visa issuance fee if the visa is approved. If the visa interview or appointment is successful, you will receive an E visa in your passport, which will allow you to come to the U.S.

Necessary Documents

When going for an interview, you will need particular documents. The biographical documents you need will include:

  • A valid passport for travel to the U.S. The passport’s validity date must be valid for not less than six months after the lapse of your stay in the U.S. Note that if multiple people are listed in your passport, each of them will need to make a separate application.
  • Two photos of yourself in which one will be uploaded while filling Form DS-160. In case the upload fails, you will need to carry a printed one.

If you made the application at a U.S. consular office in a foreign country, you would require the following documents:

  • Form DS-160 confirmation page for non-immigrant visa application
  • Form DS-156E for all treaty traders and treaty investors coming to the U.S. to fill the positions of executives, managers, or essential employees.
  • If at all, application payment or fee receipts are a requirement before the consulate appointment or interview.

Other support or additional documents that you might need include:

  • Your resume
  • A letter from your employer in case you are an employee of a treaty investor, detailing the unique qualifications that make you an integral part of the business’s success.
  • Documents proving the company’s ownership citizenship in case of E-2 classification

The E treaty trader or investor must demonstrate that the business or investment they are engaging in meets all the set regulations and comply with E classification requirements. You might be provided with forms to fill out this information. The consular officer might request additional details, although the required documents will vary with the situation.

Suppose you are an E treaty investor looking forward to establishing a new business in the U.S., you will be required to provide the following documents:

  • Articles of incorporation filed with the Secretary of State
  • A corporate bank account
  • Corporate documents like stock certificates and operating contracts
  • Evidence of employer identification number
  • Require business permits

In the event you are acquiring an existing entity, supplementary documents a consular officer might request are:

  • Purchase contract
  • Financial statements
  • Income statements
  • Ownership transfer
  • Company payroll
  • List of current employees and their positions

Further, you might be required to provide proof of investment in the U.S. Some of the documents you will need to prove this include:

  • Lease agreement for the business structure
  • Proof of rent payment
  • Evidence that you set up telephone, internet, and power connections in the business premises.
  • Invoices and receipts showing the costs you have incurred in decorating, renovating, and buying equipment for the premises.
  • Evidence that you have set up a payroll for the employees
  • A business plan
  • Customer orders
  • List of your workers, SSN, and their positions

During your interview, you might be required to prove the source of your investment capital. Some of the documents you can provide to prove this include:

  • Bank statements from a foreign country at least four months before the wire transfer
  • A letter from an employer or immediate family detailing the source of money
  • A personal statement explaining the source of the money
  • In case of a loan, you have to provide property deeds

Entry to the United States

Your E treaty trader or investor visa will allow you to enter the U.S. through a port of entry, usually an airport. Remember, even if you have received a visa, this doesn’t guarantee automatic access to the U.S. The DHS and CBP officials at the airport are the ones who decide if they will grant or deny your entry. If you are admitted to the country, CBP officials will offer you Form I-94.

Validity Duration of E Treaty Traders or Investors

The initial period of stay for an E trader or investor is two years. The legal spouse or unmarried children below 21 years, accompanying them, also have a similar stay duration.

Extending your Stay

If you have a reason to extend your stay, an extension can be granted at an increment of two years without any limit on the total stay duration. You can apply for an E visa holder extension by applying to extend your stay by filing Form I-129 and E supplement.

E Treaty Traders or Investors Dependents

Under this visa category, your spouse and unmarried children 21 years or younger are free to accompany you to the U.S. as dependents. However, you should follow a particular process to apply for their visa.

Suppose your dependents are already living in the United States. In this case, they should apply to change or extend the nonimmigrant status using Form I-539. The form applies to all dependents either with E-1 and E-2 Form I-129. They could also apply separately upon USCIS’s approval of E treaty trader or investor Form I-129 and if the service center has authority where the dependents live.

If your family is living in the U.S. but with an invalid status, they must depart the U.S. and apply for a new visa at a consular office abroad. And if they are outside the United States, to apply for a visa, they should reach out to the U.S. consulate in the treaty country for guidance on application.

Keep in mind that dependents can also extend their stay, and under this classification, they are allowed to work in the U.S. However, they must complete and submit Form I-765 under category (a) (17) for them to start working. Other dependents who don’t qualify under this category cannot work in the U.S. Also, understand that all your dependents can attend school and other learning institutions without changing their nonimmigration status.

Changing Status

While living in the U.S., you can request a change in your non-immigration status to the E status.  Suppose you are a beneficiary of a visa under category C, D, K, S, or J cannot change your status to the E category. A J visa beneficiaries cannot file for status change if they are subject to the two-year residency requirement unless they obtain a waiver for the residency or return to their home country and physically live there for two years after departing the U.S.

J waivers are of five types. These are:

Persecution — If you were to face religious beliefs, race, or political opinion persecution upon returning to your home country, you are eligible for a J waiver. You can apply for the waiver by completing and presenting Form DS-3035 with the DOS, plus Form I-612 with the USCIS.

Hardship — When your departure from the U.S. would cause untold hardship on your legal spouse and children permanently residing in the U.S., you are eligible for a J-waiver.

No objection — In this case, your country issues a statement saying they are not objecting to the waiver. That way, you become eligible for a J waiver.

A request by the U.S. agency — This form of J waiver is initiated by the U.S. agency, proving that the waiver is in the public’s best interest and return to the home country by the J-1 will be detrimental.

Find an Experienced Los Angeles Immigration Attorney Near Me

If you would like to learn more about E treaty trader/investor, you need to contact an immigration attorney for legal advice. At the California Immigration Attorney, we are ready to help obtain an E visa. Contact us today at 424-789-8809‌ for a free consultation.