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E1/E2 VISAS

Overview

The E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are part of the U.S. nonimmigrant visa category designed for citizens of countries that have treaties of commerce and navigation with the United States. These visas allow nationals of treaty countries to enter the U.S. to engage in substantial trade (E-1) or to develop and manage an investment in a U.S. enterprise (E-2). Each visa has its own distinct set of requirements, and they share several general benefits, such as no annual cap and renewable visa status.

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E-1 Treaty Trader Visa

The E-1 visa allows citizens of treaty countries to enter the U.S. for the purpose of engaging in substantial trade between their home country and the United States.
 

Requirements for an E-1 Visa

  1. Nationality of the Applicant:

    • The E-1 visa is available only to nationals of countries that have a qualifying treaty of commerce and navigation with the United States. Both the employer (if applicable) and the employee or trader must hold the nationality of a treaty country. The list of treaty countries is published by the U.S. Department of State.
       

  2. Substantial Trade:

    • The applicant must be engaged in substantial trade, defined by:

      • Volume and Continuity: Trade must be substantial in the sense that it involves a continuing flow of numerous transactions over time. A single or infrequent transaction is insufficient. While there is no minimum threshold for the number of transactions, they must be regular and significant.

      • Trade Between the U.S. and Treaty Country: More than 50% of the trade conducted by the trader must be between the U.S. and the treaty country. Trade conducted between the U.S. and other countries does not count toward this requirement.

      • Type of Trade: Trade may include tangible goods (merchandise, raw materials) or intangible services (technology, insurance, banking, tourism, consulting, etc.).
         

  3. Executive, Supervisory, or Essential Skills Role:

    • The applicant must be coming to the U.S. to assume a role that is executive or supervisory in nature or one that requires highly specialized skills essential to the successful operation of the trading enterprise.
       

      • Executive or Supervisory Role: Applicants must have significant authority to make decisions on behalf of the company, direct the management of the organization, or oversee the overall operation or a major component of it.

      • Essential Skills Role: For those not in an executive or supervisory position, the applicant must demonstrate that their specialized skills are necessary for the efficient operation of the trading company in the U.S. Routine roles that can be filled by U.S. workers typically do not qualify.
         

  4. Company Nationality:

    • If the E-1 visa is being sought for an employee of a company, the company itself must also be at least 50% owned by nationals of the treaty country. If the enterprise is jointly owned, the qualifying nationality must control more than 50%.
       

Additional Considerations for E-1 Visa Applicants

  • Intent to Depart: Although the E-1 visa allows for long-term stays and extensions, the applicant must express confirm his/her intent to leave the U.S. when their E-1 status expires.
     

  • Self-Employment: Entrepreneurs who are engaging in substantial trade with the U.S. may also qualify for an E-1 visa if they meet the other requirements.
     

E-2 Treaty Investor Visa

The E-2 visa is available to nationals of treaty countries who wish to enter the U.S. to direct and manage an U.S. enterprise in which they have made a substantial investment.
 

Requirements for an E-2 Visa

  1. Nationality of the Applicant:

    • Like the E-1, the E-2 visa is available only to nationals of countries with which the U.S. maintains a treaty of commerce and navigation. Both the investor and the company (if applicable) must hold the nationality of a treaty country. The list of treaty countries is available through the U.S. Department of State.
       

  2. Substantial Investment:

    • The applicant must have invested, or be actively in the process of investing, a substantial amount of capital into a U.S. business.
       

    • Substantiality of the Investment:

      • The amount of investment must be enough to ensure the successful operation of the enterprise. While there is no specific dollar amount that qualifies as “substantial,” the investment must be proportionate to the total cost of purchasing or establishing the business.

      • The investment must involve a high risk of loss, meaning the capital must be subject to potential loss if the business fails. Loans secured by the business’s assets do not qualify.

      • The funds must be irrevocably committed to the business (i.e., the investor must already have made or be in the process of making the investment, with documentation such as financial statements, receipts, and wire transfers).
         

  3. Real and Active Commercial Enterprise:

    • The U.S. enterprise must be a real, active, and operating business that produces goods or services for profit. Passive investments, such as real estate holdings or undeveloped land, do not qualify.
       

    • Marginality Test: The business must not be marginal. This means that it should have the present or future capacity to generate more than enough income to provide for the investor’s living expenses and have an economic impact, such as hiring U.S. workers. The U.S. government will evaluate the financial viability of the business plan and projected earnings to determine whether the enterprise is truly viable.
       

  4. Executive, Supervisory, or Essential Skills Role:

    • The investor must be entering the U.S. to develop and direct the business. For example, they should hold at least 50% ownership of the enterprise, have operational control through a managerial position, or demonstrate other forms of controlling interest in the company.

    • Employees of the investor may also qualify if they are coming to the U.S. to assume an executive or supervisory position, or if they have skills essential to the success of the business. These specialized skills must be unique and not easily replaceable in the U.S. labor market.
       

  5. Funds Must Be Lawfully Obtained:

    • The capital invested in the U.S. enterprise must have been lawfully acquired. Investors must provide detailed documentation proving the source of the investment, such as business profits, inheritance, or personal savings, and demonstrate that the funds were obtained through legal means.
       

  6. Employment of Nationals:

    • Once a company is registered as an E-2 company, employees of that company who hold the same nationality as the E-2 company may qualify for E-2 employee visas if they hold a supervisory or essential role.
       

Additional Considerations for E-2 Visa Applicants

  • Investment at Risk: The investment must be at risk, meaning it may not be a passive investment or a speculative venture.
     

  • Intent to Depart: Like the E-1, the E-2 visa requires the applicant to demonstrate intent to leave the U.S. once the E-2 status expires, though they can renew indefinitely as long as the business continues to operate.
     

  • Self-Employment: Investors who own and control the business in the U.S. can qualify for the E-2 visa, provided all requirements are met.

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Benefits of an E-1 and E-2 Visa

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  • No Quota: Unlike other visa categories such as the H-1B, there is no cap on the number of E-1 or E-2 visas issued each year.
     

  • Family Benefits: Spouses and unmarried children under 21 can accompany the E-1/E-2 visa holder to the U.S. on E-1 or E-2 dependent visas. Spouses obtain automatic work authorization (EAD), allowing them to work in the U.S for any employer of their choice.
     

  • Renewable Status: E-1/E-2 status is initially granted for up to 2 years and can be extended in 2-year increments indefinitely, as long as the trade or investment enterprise remains active. However, it’s important to distinguish between visa and status:

    • Visa: The E-1/E-2 visa stamp in your passport allows you to enter the U.S. and is typically valid for 4-5 years, depending on your country of nationality.

    • Status: Once you are in the U.S., your E-1/E-2 status, which allows you to stay and work, is granted for up to 2 years at a time at each entry, as long as the business remains operational.

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How to Apply for E-1 and E-2 Visas

The process for applying for an E-1 or E-2 visa is detailed and involves several steps, from determining eligibility to providing evidence of trade or investment activities. Here's a comprehensive breakdown of how to apply for each visa type:

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Step 1: Determine Eligibility

Before applying, ensure that:

  • You or your employer are a national of a treaty country.

  • For an E-1 visa, there is ongoing substantial trade between the U.S. and the treaty country.

  • For an E-2 visa, you have made (or are in the process of making) a substantial investment in a U.S. business.

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Step 2: Gather Required Documentation

The required documents will vary depending on whether you're applying for an E-1 (Treaty Trader) or E-2 (Treaty Investor) visa, but generally include:
 

  • Completed DS-160 form (Online Nonimmigrant Visa Application).
     

  • Treaty Trader (E-1) Visa:

    • Proof of nationality of the applicant and any business owners.

    • Documents demonstrating substantial trade (e.g., bills of lading, purchase orders, invoices, contracts, financial statements).

    • Evidence that more than 50% of the trade is between the U.S. and the treaty country.

    • Employment contracts or business plans detailing the applicant’s role in an executive, supervisory, or essential skills capacity.

    • Detailed business plan. 
       

  • Treaty Investor (E-2) Visa:

    • Proof of nationality of the investor(s).

    • Proof of substantial investment, including:

      • Financial statements, invoices, and receipts for the purchase of business assets.

      • Bank records showing the transfer of funds.

      • Business plans demonstrating the enterprise's viability and marginality.

      • Evidence of the legal source of the investment funds.
         

    • Evidence that the business is real and operational, such as leases, inventory lists, or employment records.

    • Detailed business plan, including pro forma financials for the next 5 years. 
       

Step 3: File the DS-160 and Submit your E-1/E-2 Application

  1. Complete the DS-160 Form:

    • The DS-160 is the online application form for nonimmigrant visas. Fill this out accurately, and make sure to upload a passport-sized photo that meets the U.S. Department of State’s specifications.
       

  2. Pay the Application Fee:

    • You must pay this fee before scheduling an interview. Keep the receipt, as you will need it for your visa interview.
       

  3. Submit the Application, according to the U.S. Embassy/Consulate requirements:

    • After filing the DS-160, file your E application at your U.S. embassy or consulate. You must wait for their approval before booking your E-1/E-2 visa appointment.
       

Step 4: Schedule and Prepare for the Visa Interview

For the interview, you will need to bring the following documents:

  • Confirmation page of the DS-160 form.

  • Receipt of the visa application fee.

  • Passport (generally must be valid for at least six months beyond your intended stay in the U.S.).

  • Supporting documentation to establish your eligibility for the E-1 or E-2 visa.
     

During the interview, the consular officer will assess your application to ensure you meet the visa requirements. It’s essential to provide clear, organized documentation, and to be prepared to explain the nature of the trade or investment and your role in the enterprise.
 

Step 5: Attend the Interview

  • During your visa interview, the consular officer will ask questions about your background, the purpose of your visit, and your business activities.

  • Be prepared to explain:

    • For E-1 (Treaty Trader): The volume and nature of your trade with the U.S. and your position in the company.

    • For E-2 (Treaty Investor): The amount of investment you’ve made, how the funds were obtained, your role in the enterprise, and how the business will operate in the U.S.

  • The consular officer may request additional documentation if needed.
     

Step 6: Wait for Visa Approval

  • If your application is approved, your passport will be returned with the visa stamp, allowing you to enter the U.S.

  • If further processing is required, the embassy may request additional documentation or administrative review. This can delay the process, so it’s important to apply well in advance of your planned travel.
     

Step 7: Enter the U.S. and Begin Business Operations

Once you receive your visa:

  • You may enter the U.S. and engage in your approved activities (either treaty trade or investment operations).

  • Port of Entry: U.S. Customs and Border Protection (CBP) officers will determine the length of your stay, typically up to 2 years. You will receive an I-94 Arrival/Departure Record, which indicates the authorized period of stay.
     

Step 8: Extensions and Maintaining Status

  • You can apply for an extension of stay or renewal in 2-year increments as long as your treaty trade or investment enterprise remains active and you continue to meet the visa requirements.

  • Unlike some visa categories, there is no maximum time limit on how long you can remain in the U.S. on an E-1 or E-2 visa, provided the business or trade continues.
     

For Dependents:

  • Spouses and children under 21 can accompany the principal E-1 or E-2 visa holder to the U.S.

  • Spouses receive automatic work authorization (EAD), allowing them to work in any lawful capacity in the U.S.
     

Contact Us

If you’re ready to apply for an E-1 or E-2 visa, or need assistance navigating the application process, our boutique immigration law firm specializes in U.S. immigration matters. We provide personalized support tailored to your unique business needs, ensuring that your visa application meets all legal requirements. Contact us today and book a consultation to discuss your case and secure your E visa for trade or investment in the U.S.!

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