Introduction to Treaty (E1/E2)visas

Treaty investor or trader visas are available to nationals of those countries which have signed bilateral treaties with the United States designed to promote trade and investment between their country and the US.

Such treaties enable nationals of those countries to come to the Unites States to either;

(1) Develop and direct the investment they have made in the United States, or,

(2) Engage in Trade with the United States

Furthermore, nationals of those countries may also come to the United states to manage, or serve as a specialist or essential worker for  a investment or trading company established in the United states and owned by  nationals of a country which has the requisite treaty with the US. Provided of course that the employee has the same nationality as the owners of the underlying business. Fir example a UK national may work for a British owned company but not for a German one.

MAJOR ADVANTAGES OF E1 and E2 VISAS

• Treaty visas, unlike many other visas, do not have any specific maximum duration. normally issued for an initial 2 year period, the visa can be renewed as long s the investment or trading activity continues. Therefore a potentially unlimited stay in the US can be possible
• The spouse of the principal E visa holder is eligible to obtain work authorization for the time that he or she is accompanying the principal in the US.
• Treaty visas can often be obtained relatively quickly form the US embassy or consulate in the Treaty country without the requirement of obtaining approval form the USCIS in the United States

The E2 Treaty Investor:

Key requirements

The investing individual or company must have, or be actively in the process of making a  substantial investment in a non-marginal active business in the United States. 

This begs the following questions

 What is a substantial investment?

No definite dollar amount has ever been set by the immigration or consular authorities in response to this often asked question. The general rule of thumb is that $100,000 is generally considered substantial, provided that this amount is proportionate to the total overall investment. 

$50,000 is normally considered as an absolute minimum although even this cannot be stated as firm rule. It is possible to get E2 approval on an investment of as little as $30,000 if it can be documented that the business will rapidly expand and employ numerous US employees

What is a non-marginal business?

The E2 investment cannot simply merely provide a living for the investor and his family-it cannot be marginal. Normally the investor will have to establish that the business will provide employment for at least one US citizen or have reasonable prospects of doing so in a reasonable period of time.

What is required to establish that the investment has been made or that the investor is in the process of making the investment?

The investment can be either an existing or start-p business. Typically if an existing business is purchased the investor would need to show that the investment funds had been irrevocably committed to the purchase. Normally, a signed purchase agreement is required together with proof that the purchase funds have been placed in an escrow account and will released to the seller on the sole condition that the E2 application is approved. This is obviously done to protect the investor.

In a start-up situation the investor would have to show at a minimum that they have a signed business lease, that they have gone beyond the mere preparatory stages of making the investment and the fund are ready and available to be committed to the establishment of a new business. A comprehensive business plan would be an absolute requirement.

What is an active as opposed to a passive investment?

 The investment must be in an actual operating business. for example, simply purchasing real estate in the hope that it will appreciate in value in time will not qualify. However, the establishment of a real estate management or development company with employees may well suffice if well documented.

How much of a ownership interest is required?

In order to be in a position to direct and control the investment the overseas national must own at least 50% of the business, wither as  an equal partner, joint venturer or a 50% shareholder. %0% is considered sufficient to give the investor 'negative veto power' over the enterprise.

The nationals of which countries qualify fro E2 visas?

The following countries have the required Treaty with the United States

Unratified but signed treaties exist with: Albania, Azerbaijan, Haiti, Jordan, Nicaragua, and Russia.

The E1 Treaty Trader Visa:

Treaty Trader status is available for Nationals of qualifying  countries who engage in significant and continuous trade with the United States. The classic profile of a treaty trader enterprise would be an enterprise which is involved import and/or export of goods and services between their home country and the United States.

In essence, the volume of such trade must be sufficiently large and continuous to justify the trader or his/her employee(s) being in the United States to oversee or manage the trading operations.

Furthermore the trading activities, between the home country and the United States must constitute at least 50% of the enterprise's business activity.

There is no specified limit as to what constitutes sufficient trade to justify Treaty Trader status and the issuance of an E-1 visa. In general there must be a pattern of continuous trading between the home country and the US. Many transactions of relatively modest value can be sufficient.

Furthermore, in order to obtain Trader status it must be demonstrated that some volume of trade is already in existence. This can be show by producing bills of lading, invoices, proof of transfer of goods or services.

There is no requirement that the trade be in tangible goods. Trade in services is likewise acceptable.

For example, a company coming to the US to provide a service to US businesses or consumers and whose profits are repatriated to the home country could qualify as  a Treaty Trader.

There is no requirement that any specific amount of capital be invested.

As with the E2 visa category, spouses of E1 principals are eligible for work authorization.

E1 Visa Countries

The following countries have treaties with the U.S. which permit Treaty Trader status