30 September 2024

E-1 (Treaty Trader) or E-2 (Treaty Investor) Visa

Treaty Trader visas (E-1) and Treaty Investor visas (E-2) are non-immigrant visas for citizens of countries which the US maintains a treaty of commerce and navigation (E-1) or bilateral investment (E-2). There are over 80 “Treaty Countries”, and nationals of these treaty countries may pursue trading or investment opportunities to expand and grow their business in the US.

Benefits of an E-1 or E-2 visa

• E-1 or E-2 visas can be renewed indefinitely provided that the company and the visa applicant continue to meet the requirements for the category.
• E-1 promotes business growth through international trade. E-2 enables business growth through investment.
• spouses and children up to age 21 may accompany the visa holder. Spouses may receive work authorization incident to status.
• green card applications may be an option.

Requirements for an E-1 Visa

Treaty traders are those who carry on substantial, principal trade in goods, services and/or technology between the country of their citizenship and the United States.

• 50% or more trade must happen between the US and the treaty country.
• The visa holder needs to be making “substantial trade” in the US.
• You must be a citizen of the treaty country.

What is Substantial Trade

“Substantial Trade” is broad term and defined as: Trade is the existing international exchange of items of trade for consideration: Goods, Services, International Banking, Insurance, Transportation, Tourism, Technology and its transfer or news-gathering activities.

There must be continuous flow of international trade between the US and the treaty country.  Continuous flow contemplates numerous transactions over time and no minimum requirement regarding the monetary value or volume of each transaction.

Requirements for an E-2 Visa

Treaty investors are those who have invested, or are actively investing, a substantial amount of money in a bona fide US business. A qualified investment must be substantial to ensure the investor’s commitment to the success of the enterprise:

• Have a minimum 50% stake in the business
• Capital is “at risk” and “substantial”
• Show the capital has been generated through legal means.

What is Substantial Investment

“Substantial Investment” is to ensure that the US business invested in is not speculative but is, or soon will be, a successful enterprise.  The investment funds must be committed and irrevocable. Generally, the amount of the investor’s at-risk investment is weighed relative to the cost of purchasing or creating the enterprise.

No set dollar figure constitutes a minimum amount of investment to be considered “substantial” for the E-2 visa purposes.

Applying while outside the US

E-1 or E-2 visa processing times vary widely depending on the US Embassy reviewing the visa application. If you are applying from outside the country, you will need to complete and submit form DS-160. You will also need to attend a consular interview at the post where the application was filed. If the application and interview are approved, a visa will be issued.

Periods of stay

Qualified E-1 or E-2 employees will be issued a visa valid up to five year and allowed a maximum initial stay of two years. All E-1 and E-2 nonimmigrants must maintain an intention to depart the US when their status expires or is terminated.

An E-1 or E-2 nonimmigrant who travels abroad may generally be granted, if determined admissible by a US Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States.

Green card options for E-1 or E-2

The US business or employer may sponsor their E-1 or E-2 employees for permanent resident (“Green card”).  Depending on the employee’s position (owner vs. employee) different options may be available.

Spouse and Children

Family members may accompany the E-1 or E-2 employee to the US.  E-1 or E-2 employee’s spouse may also receive work authorization incident to their status.  Children may attend school in the US but may not be eligible for employment authorization.

For any guidance or advice on the E-1 or E-2 visa categories, please contact your LDI attorney or enquiries@lauradevine.com.