Citizens from all over the world do business with US companies or have investments in the US. Likewise, Americans have business dealings and investments in countries across the globe. Sometimes, the US and another country enter into a trade and investment treaty. The idea is to make it easier for Americans to do business or invest in the foreign country, and vice versa. The economies and business climates in both countries benefit.
Treaty trader (E-1) and treaty investor (E-2) visas are how the US can help you, as a foreign national of a treaty country, do business with a US company, or make or manage your investments in the US. A treaty country is one that has a trade and investment treaty with the US. These two visas have many similarities and some differences.
Trader vs. Investor
The primary difference between E-1 and E-2 visas is, as their names indicate, the purpose for each visa, that is, who's using the visa and for what. Are you a "trader" or an "investor?"
E-1 Treaty Trader
E-1 visas allow foreign nationals ("aliens" or non-US citizens) to enter the US to:
- Carry on substantial trade that is
- Principally between the US and the treaty country
"Trade" means the international exchange of goods, services and technology. "Substantial trade" means there is a continuous exchange of goods and services between the US and the E-1 trader. For trade to be "principally" between the US and the treaty nation, more than 50% of the E-1 visa-holder's international trade must be with the US.
In addition, the trading company must be a national of the treaty nation. So must any employee of the company who wants the visa. An employee must be a supervisor or executive, or she must have highly specialized skills essential to the company's business. The idea here is to limit the visas to persons with the knowledge and authority to conduct trade with US companies or citizens.
E-2 Treaty Investor
E-2 visas are for companies that are nationals of a treaty country, employee-nationals of such a company, or an individual citizen of a treaty nation. E-2 visa holders are permitted to enter the US to develop and direct the operations of a US-based enterprise in which the foreign national has invested, or is in the process of investing, a substantial amount of "capital," that is, money or other assets.
Generally, "substantial" investment means that it's enough to ensure that the business or enterprise can be successful. The exact dollar amount will vary depending on the business, but generally, whether an investment is substantial will be determined by comparing the amount of the investment to:
- The present, current value of the business, or
- How much it would cost to start-up the business from scratch
Your investment must be in a real operating business. Money sitting in a bank account collecting interest doesn't qualify. And your investment must be "at risk," meaning that you could lose all or part of your investment if the business fails.
E-2 visas are granted only to persons coming to the US to develop and direct the enterprise. As with E-1 visas, you have to be a supervisor, executive or employee with highly specialized skills to get the visa unless you are the primary investor, meaning you own at least 50% of the investment.
E-1 and E-2 visas have many more things in common than differences. With either visa, you can:
- Stay in the US for up to two years, so long as you maintain your status as a treaty trader or investor. Also, you can apply for extensions of the two-year period, and there's no limit on the number of extensions you can get
- Bring your spouse, and your children who are under 21 years old, to the US. They can stay and live here with you for as long as you have an active, valid E visa. Also, your spouse and children can go to school in the US, and your spouse (but not your children) can work in the US if he applies for and is granted work authorization
For either E visa, you must be "admissible" to enter the US. "Admissibility" is based upon a number of factors listed in the US immigration law. For example, you may be inadmissible if you've been convicted of drug-related crimes, such as drug trafficking; or if you have a serious and contagious disease, such as HIV-AIDS.
Generally, you apply for E-1 and E-2 visas in the same way. You need to complete the electronic version (e-form) of the Nonimmigrant Visa Application, Form DS-156. Also, you need to complete the Treaty Trader/Investor Application, Form DS-156 E. These materials are filed with the US Embassy or Consulate in your country. You'll also need various other documents that show or prove:
- Continued trade between your business and US-based companies (for E-1 visas)
- The business or enterprise that's being invested in by you or your foreign national employer
- That you're a supervisor or executive with your employer; or that you have highly specialized skills essential to your employer's business in the US; or that you own 50% of the US-based investment (for E-2 visas)
- That you intend to leave the US when your visa expires
There are many other types of documents or proof that you may need to complete your application, but because each case is different, there's no standard list of materials you may need. When you file your application, the embassy official or consular officer will let you know what other documents you need.
Questions for Your Attorney
- Would it be better for me to hire a US-based attorney to help me get E visas for my employees, or should I get help from an attorney from my native country?
- How long will it take for my E-1 visa to be issued?
- Can I apply for permanent US residency ("green card") while I'm in the US on an E-1 visa?