Treaty Trader Investor
E- Visa
E visas, specifically the E-1 (Treaty Trader) and E-2 (Treaty Investor) visas, are designed for nationals of countries that have treaties with the United States. These visas allow foreign nationals to enter the U.S. to engage in substantial trade (E-1) or to invest a significant amount of capital in a U.S. business (E-2).
Key Points for E Visa Eligibility:
Treaty Requirement: The applicant must be a national of a country that maintains a qualifying treaty with the U.S., such as a bilateral investment treaty (BIT) or a treaty of friendship, commerce, and navigation (FCN).
Ownership Requirement: For E-2 visas, the applicant must own at least 50% of the business or have operational control. This can include ownership through a corporation or partnership.
Investment Requirement: The investment must be substantial concerning the cost of establishing or purchasing the business. The business must also be a real and operating enterprise.
Trade Requirement for E-1 Visas: For E-1 visas, the trade must be substantial, meaning that there should be a significant volume of trade between the U.S. and the applicant’s home country.
Duration: E visas are typically granted for up to two years, with the possibility of extensions. There is no limit to the number of extensions, as long as the business remains operational and meets the visa requirements.
Dependents: Spouses and unmarried children under 21 can accompany the E visa holder and may apply for work authorization.
These visas are particularly beneficial for entrepreneurs and business owners looking to expand their operations in the U.S.
Two Types: Treaty Trader Visa (E-1) & Treaty Investor Visa (E-2)
You’ve provided an accurate overview of the qualifications and requirements for the E-1 Treaty Trader visa and the E-2 Treaty Investor visa. Here’s a more detailed breakdown of each visa category:
E-1 Treaty Trader Visa (E-1)
Eligibility Criteria:
The applicant must be a national of a country that has a qualifying treaty with the U.S.
The individual must engage in substantial international trade, primarily between the U.S. and their home country.
The applicant can qualify as:
A treaty trader engaging in trade.
An essential employee of the treaty trader, who must be in a managerial or executive position, or possess specialized skills crucial for the business’s operations.
Ineligibility:
Normal skilled or unskilled workers do not qualify for the E-1 visa, as the focus is on trade and the essential roles that support the treaty trader.
E-2 Treaty Investor Visa (E-2)
Eligibility Criteria:
The applicant must be a national of a treaty country that has a qualifying investment treaty with the U.S.
The individual must have invested or be actively in the process of investing a substantial amount of capital in a U.S. enterprise.
If the applicant is not the primary investor, they must hold a key position within the company (managerial, executive, or possess highly specialized skills).
Key Aspects:
The investment must be in a real and operating business, and the amount must be significant relative to the total cost of establishing the business.
The business should generate enough income to support the investor and their family, beyond just the investment.
Additional Information:
Visa Duration and Extensions:
Both E-1 and E-2 visas are typically granted for an initial period of up to two years, with unlimited extensions available as long as the business continues to operate and meets the visa requirements.
Dependents:
The spouse and unmarried children under 21 of the visa holder may accompany them to the U.S. and can apply for work authorization.
These visas provide significant opportunities for foreign nationals seeking to establish or manage a business in the United States while fostering trade relations between their home countries and the U.S.
The trade requirements for the E-1 Treaty Trader visa are spot-on. Here’s a detailed breakdown of the three criteria that trade must meet to qualify for this visa:
Criteria for E-1 Trade Qualification
Real Exchange:
The trade must involve a genuine exchange of goods, services, or money. This means that there must be a tangible and substantial exchange that demonstrates the nature of the trade. Qualifying commodities can include tangible products, intangible services, and even financial instruments, as long as they reflect real transactions between the parties involved.
Global Scope:
Trade must be conducted globally, meaning that there should be international transactions that extend beyond the U.S. and the treaty country. This ensures that the trade relationship is not limited to domestic transactions but involves international engagement, enhancing the validity of the E-1 application.
Qualifying Activities:
The trade must consist of activities that are recognized under U.S. immigration law. This includes various forms of international trade such as importing and exporting goods, providing services, and engaging in commercial activities that contribute to the economy of both the U.S. and the treaty country. The exchange must also demonstrate that it serves a legitimate commercial purpose.
Additional Requirements
Trade Volume:
To qualify for the E-1 visa, more than 50% of the treaty trader’s international trade must be conducted between the U.S. and the treaty country. This requirement underscores the primary focus of the E-1 visa on fostering trade relationships between the U.S. and the applicant’s home country.
Documentation:
Applicants must provide substantial documentation to demonstrate compliance with these criteria. This can include records of trade transactions, contracts, financial statements, and evidence of the nature and volume of trade conducted.
Conclusion
These criteria ensure that the E-1 visa is granted to individuals who are actively engaged in meaningful trade between the U.S. and their home country, thereby promoting international commerce and investment. Applicants should be prepared to demonstrate how their activities align with these requirements in their visa applications.
The E-2 Treaty Investor visa does not have a specific monetary threshold for what constitutes a "substantial" investment. Here are some important points to consider regarding the capital investment requirement for the E-2 visa:
Understanding "Substantial" Investment
No Fixed Minimum:
The E-2 visa does not specify a minimum investment amount, meaning the determination of what is considered substantial can vary widely depending on the nature of the business and its operational needs.
Proportionality Test:
The investment must be proportional to the total cost of establishing the business. For example, if the total cost to start a business is $100,000, an investment of $50,000 might be substantial. Conversely, if the business requires $1 million to establish, the same $50,000 would not meet the substantiality requirement.
Type of Business Matters:
The definition of substantiality is highly dependent on the type of business being established. As you mentioned:
High-Cost Businesses: Industries such as manufacturing, where the purchase of facilities and equipment can run into the millions, will require a higher level of investment to meet the substantiality criterion.
Low-Cost Businesses: Service-oriented businesses, like consulting firms or small retail operations, may have much lower startup costs, and thus, a smaller investment can still be considered substantial in that context.
Investment Must Be at Risk:
The funds must be at risk in the commercial sense; that is, the investment should be subject to loss if the business fails. This means that simply holding funds in a bank account or making a passive investment is not sufficient.
Operational Requirement:
The investment must be used to develop and direct the operations of the business. The business should not be marginal; it should have the capacity to generate enough income to support the investor and their family.
Documentation:
Applicants must provide documentation showing the investment amount and how the funds will be utilized in the business. This can include financial projections, a business plan, and evidence of actual expenditures.
Conclusion
While the lack of a fixed monetary threshold for E-2 investments adds some flexibility, it also places the burden on applicants to demonstrate that their investment is substantial relative to the business's total startup costs and operational needs. Potential E-2 applicants need to prepare thorough documentation and possibly consult with an immigration attorney or expert to ensure their application meets the necessary criteria.
The E-2 Treaty Investor visa regarding the concept of a "marginal enterprise." Here’s a breakdown of what this means in the context of the E-2 visa:
Understanding Marginal Enterprises
Definition of a Marginal Enterprise:
A marginal enterprise is defined as a business that does not generate enough income to provide a living for the investor and their family beyond a minimal, subsistence level. In other words, if the business can only support the basic living expenses of the investor and their family without any potential for growth or expansion, it may be considered marginal.
Future Economic Contribution:
A business that currently lacks sufficient income but has the potential to contribute significantly to the U.S. economy in the future is not classified as marginal. The emphasis is on the business's potential for growth and its ability to create jobs, generate income, or otherwise impact the economy positively.
Assessment of Future Capacity:
When evaluating whether an enterprise is marginal, U.S. immigration authorities will consider the anticipated future capacity of the business. This capacity should typically be measurable and expected to be realized within five years of the investor commencing regular business operations.
Factors that may be considered include:
Business plans outlining growth strategies.
Market research indicates demand for the product or service.
Financial projections demonstrate how the business will become profitable.
Documentation Required:
E-2 applicants must provide documentation that illustrates their business's viability and potential for economic contribution. This could include:
A detailed business plan.
Financial forecasts.
Evidence of market demand or potential customer base.
Employment creation plans.
Conclusion
The focus on non-marginality helps to ensure that E-2 investors are contributing to the U.S. economy in a meaningful way. Investors should prepare comprehensive documentation and strategies that demonstrate their business's potential for profitability and economic impact, ideally showing how it will move beyond merely subsisting to becoming a thriving enterprise. Working with legal and business professionals to create a solid business plan can significantly strengthen an E-2 application.
E visas to other nonimmigrant visa categories highlight several important advantages that E-1 and E-2 visas offer. Here’s a detailed overview of those advantages and related aspects:
Advantages of E Visas
No Requirement for Establishing a U.S. Entity:
Unlike the L-1 visa, which requires the establishment of a branch, subsidiary, or parent company in the U.S., E visas do not mandate the formation of a U.S. entity. This allows treaty traders and investors to operate in the U.S. without the complexities of setting up a formal business structure.
Fewer Government Controls:
E visas generally have fewer regulatory requirements compared to the H-1B visa. For instance:
There are no prevailing wage requirements, meaning the applicant is not required to demonstrate that they will be paid a specific wage level based on local standards.
The labor condition application (LCA) attestation, which is mandatory for H-1B applicants, is not required for E visa holders.
E-visa does not necessitate the publication of wage details or the maintenance of a public access file.
Unlimited Issuance and Extensions:
There is no cap on the number of E visas that can be issued or extended. This provides a level of flexibility and accessibility that can be advantageous for both new and existing businesses.
Initial Stay and Renewals:
Both E-1 and E-2 visa holders typically receive an initial stay of up to two years. They also have the option for unlimited renewals, provided that the business remains operational and meets visa requirements. This offers significant stability and opportunity for long-term business planning.
Intent to Depart:
E-visa holders are required to maintain the intent to depart the U.S. when their status expires or is cancelled. This is a standard requirement for nonimmigrant visas and reinforces the temporary nature of E visa status.
Accompanying Family Members:
E-visa holders can bring their spouse and unmarried children under the age of 21 as dependents. These family members can apply for work authorization, which adds to the benefits of the E visa category.
Notably, the dependents do not need to share the same nationality as the primary E visa holder, which provides additional flexibility for families.
Conclusion
E visas offer several advantages over other nonimmigrant visa categories, making them an appealing option for foreign nationals looking to engage in trade or investment in the United States. The fewer restrictions, ease of renewal, and the ability to bring family members who can also work contribute to the attractiveness of E-1 and E-2 visas for treaty traders and investors. As always, applicants should ensure they understand the requirements and prepare thorough documentation to support their applications.
Would you like more information on the application process or specific requirements? Please contact us or send an email.