E-1 & E-2 Visas

The E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are for individuals who are nationals of a country with which the United States maintains a treaty of commerce and navigation, and wish to come to the United States primarily to engage in international trade (E-1) or invest a substantial amount of capital in a U.S. business (E-2). These visa classifications are usually available to individuals who wish to buy or start-up their own business.  The E-1 and E-2 visas are not general work permits that allow foreign nationals to engage in unrestricted employment. However, they do not require sponsorship from a U.S. employer or petitioner since the foreign national in E cases are typically the employer/investor.

E-1 and E-2 visas are also available to employees who are performing managerial, executive or essential roles for the E-1 or E-2 businesses, provided that the employee is a national of the same treaty country.

Eligibility

In order to be eligible for E-1 or E-2 visas:

1. A Treaty must exist between the United States and the foreign country;
2. The foreign national must be a national of the Treaty country;
3. The E-1 or E-2 business must be at least 50% owned by nationals of the Treaty country;
4. The foreign national must intend to depart the United States when the E-1 or E-2 status terminates.

Requirements for E-1 Treaty Trader Visa Applicants

The E-1 visa is based on substantial trade. In order to qualify for an E-1 visa, applicants must meet the following requirements:

• At least 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality;
• The international trade must be a sizable and continuing volume of trade;
  • Trade includes:
    
    • The exchange, purchase, or sale of goods or services;
    • The transfer of technology; and
    • Binding contracts that call for the immediate exchange of items.
• The trade must be continuous and ongoing; and
• The title of the trade items must pass from one party to the other.

The E-1 visa is ideal for import-export businesses.

Countries that have E-1 treaties with the United States:

Requirements for E-2 Treaty Investor Visa Applicants

The E-2 visa is based on a substantial investment. In order to qualify for an E-2 visa, applicants must meet the following requirements:

• The investment must be substantial — it must be sufficient to ensure the successful operation of the enterprise;
  • No fixed amount is required.
  • A “substantial” investment varies depending on the nature of the business (the start-up costs of launching a business or if buying a business, the fair market value of the business).
• The investment must be a real operating enterprise;
  • Speculative investments and passive investments do not qualify.
  • Uncommitted funds in a bank account, a mere intent to invest or even prospective investment arrangements are not considered a sufficient commitment for purposes of obtaining an E visa.
• The investor must have control of the funds, and the investment must be at risk in the commercial sense;
  • Loans secured with the assets of the investment enterprise are not allowed.
• The investor must be coming to the U.S. to develop and direct the enterprise; and
• The investment enterprise cannot be marginal.
  • The investment must generate significantly more income than just to provide a living to the investor and family, or
  • It must have a significant economic impact in the United States.

Countries that have E-2 treaties with the United States:

¹ Israel: On June 8, 2012, President Obama signed legislation (H.R. 3992) that adds Israel to the list of countries eligible for E-2 investor visas in the United States. However, the implementation of this visa category will not be effective until the terms and conditions of the final agreement between Israel and the United States are determined. Until then, E-2 applicants cannot apply. Beginning May 1, 2019, the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Embassy in Israel will accept E-2 applications from Israeli nationals.

Validity

The validity of E-1 and E-2 visas vary per country, and may be renewed indefinitely.

Applying for an E-1 or E-2 Visa

When applying for an E-1 or E-2 visa, applicants are not required to submit a petition to the U.S. Citizenship and Immigration Services (USCIS). They may submit their application directly to a U.S. embassy or consulate in their home country.

A consular application is usually the best way two apply for an E-1 or E-2 visa. Application procedures and timing vary from country to country. Most U.S. embassies or consulates require at least 2-3 months to review the application. Once the E-1 or E-2 visa application has been reviewed, the E-1 or E-2 applicant makes an appointment at the U.S. embassy or consulate for the interview. If the E-1 or E-2 visa is approved, the passport is typically returned within 5-10 days. Therefore, planning ahead at this stage is important.

If the applicant has a criminal record, s/he must bring the official court documents, including a final court disposition, arrest or incident report, that outline the offense, penalty, probation and/or other dispositions. Criminal records and prior immigration violations can significantly impact visa issuance processing times, and, in some cases, can disqualify the applicant from entering the United States.

In some situations, where the E-1 or E-2 applicant is already in the United States on some other type of visa classification, they may submit an E-1 or E-2 change of status petition with USCIS. In these cases, the petition may be granted for a period of up to 2 years. However, if the foreign national travels abroad, s/he will need to re-submit a new E-1 or E-2 visa application to a U.S. embassy or consulate abroad in order to re-enter. The U.S. embassy or consulate will make its own decision concerning the issuance of an E-1 or E-2 visa. Unlike other nonimmigrant visas, a USCIS I-797 Approval Notice has little or no bearing on the embassy or consulate’s decision. Therefore, E-1 or E-2 applicants who file a change of status in the United States must be very careful about planning international travel.

Adjudication and the threshold of what qualifies as a “substantial” trade or investment vary from country to country. Therefore, working with an attorney who is familiar with country-specific requirements is critical if you plan to apply for an E-1 or E-2 visa.

Admission Period

A foreign national who is admitted on an E-1 or E-2 visa will be admitted for a 2-year period regardless of the expiration date of the E-1 or E-2 visa stamp. Once admitted, it is always important to check that the expiration date on the I-94 record is correct. The I-94 expiration date always governs your lawful status in the United States. If your passport expires in less than 2 years from the time of your entry, you will only be admitted until the expiration date of your passport. Therefore, it is critical to always check the expiration date of the I-94 record to ensure that you do not inadvertently overstay your visa.

Proper Use of B-1 visa or Visa Waiver for Business (WB) for Prospective Investors

Potential investors may seek out investment opportunities, survey potential sites for a business, lease premises, sign contracts and take other steps to purchase or establish a business while travelling to the United States on B-1 visa or visa waiver (WB) status. However, they may not perform productive labor or actively participate in the management of the business prior to obtaining an E-1 or E-2 visa. Such activity is not permissible regardless of whether they receive any payment for work. If necessary, an E-1 or E-2 applicant can hire U.S. workers to manage and run daily operations prior to the trader or investor obtaining an E-1 or E-2 visa.

Accompanying Family members

Immediate family members of E-1 and E-2 visa holders, such as spouses and minor children under 21 years of age are eligible for E-1 or E-2 visas.  E-1 and E-2 derivative family members may attend attend school in the United States.  E-1 or E-2 derivative spouses are eligible to apply for unrestricted employment authorization.