Foreign Investment and Trade in the United States

The E visas promote trade and investment between countries. The E1 visa is reserved for treaty traders and E2 visas is for treaty investors. To qualify for either E1 or E2, the applicant must be from a U.S. Department of State treaty country. Many countries on the list are classified as both E1 and E2, and thereby nationals may be eligible for either visa type. However, some countries have only a treaty trader or treaty investor agreement with the United States. Unfortunately, China, India and Brazil are not on either list.

Who qualifies for an E1 Visa?

Under the Treaty Trader visa, a foreign national can engage in trade with the United States on his or her own behalf. The definition of “trade” applies to the trade of goods and services, including banking, insurance, transportation, tourism, communications and technology. To qualify for an E1 Treaty Trader visa, the foreign national must:

• Be the national of a U.S. State Department treaty trader country;
• Carry on substantial trade, defined as, “continuous flow of sizable international trade items, involving numerous transactions over time”; and
• Carry on principal trade, meaning more than 50 percent of total volume of international trade, between the trader’s treaty country and the United States.

You may also qualify for the E1 visa as an employee coming to the U.S. for the purpose of trade if:

• You are an executive, manager or specialist employed by a company operating on an E1 visa in the U.S.
• You are a citizen of a treaty country

Who qualifies for an E2 Visa?

The Treaty Investor Visa allows a foreign national to come to the United States to either purchase or start a business. The visa requires the applicant to invest substantial capital and eventually hire U.S. workers. There are two ways to qualify for an E2 visa – as a principal investor or as an employee. To qualify as a Treaty Investor, you must:

• Be the national of a treaty investor country, as classified by the U.S. State Department;
• Invest substantial capital in a bona fide enterprise in the United States; and
• Be actively involved in developing or directing the investment enterprise through at least 50 percent ownership or managerial control.

Similar to the E1 visa, you may qualify for an E2 visa as an employee if:

• Your role will be supervisory or executive in nature
• You are essential to running the company
• You come from the same country as the primary E2 applicant

How much do you need to invest in an E2 visa?

Unlike the EB-5 green card requirements, the E2 nonimmigrant visa sets no minimum amount of investment or job creation criteria, making it an attractive alternative to the stricter permanent visa application. So, how much should you invest (spend)? There is no hard and fast rule around this, but an E2 investment greater than $100,000 generally has more chances of success. While investments below this amount are acceptable, your application may face more scrutiny and is riskier in this climate.

However, it’s not as simple as that. Beyond the investment amount itself, the reviewing officer will look at your investment relative to the total cost of establishing/purchasing the enterprise as well as the overall strength of your case. Where you apply for an E2 visa can also impact how your investment is assessed. While all Consulates should interpret “substantial investment” in the same way, that doesn’t always happen. At the end of the day, the more you can invest and show you are a real, viable business that will create jobs, the better your chances of approval.

E1 and E2 Visa Terms

Can I bring family?

An E1 or E2 visa holder may bring immediate family (spouse and unmarried children under the age of 21) to the U.S. Spouses are permitted to work (children are not).

How long can I stay?

The E1 and E2 visas allow for an initial stay of up to two years, with extensions of up to two years. The number of extensions for both the E1 and E2 visas is unlimited, provided all conditions of the visa are still met.

E Treaty Visa Application Process

A treaty trader or investor that is already in the United States may file Form I-129 to change status. If outside the country, the trader or investor would instead file an application with the U.S. Consulate or Embassy. It is important to work with an attorney that has extensive experience filing such applications and is familiar with E1/E2 visa adjudication trends in recent years.

E2 visa to green card – Is this possible?

The E2 visa is a non-immigrant visa, which means there is no direct path from an E2 visa to a green card. You simply cannot apply for one while on E2 status. If you are interested in obtaining a green card, your only options are:

• Have a family member sponsor you
• If you have exceptional abilities, explore the National Interest Waiver program with an immigration lawyer (the bar is quite high for this but worth a conversation if you have talent)
• Invest a larger amount through the EB5 visa which does offer a path to a green card
• Start your business outside the U.S. and then transfer to the U.S. a year later on an L1A visa as a manager /executive

Talk to a qualified immigration attorney in our network to explore the E1 and E2 visa option. Schedule a call with Ask Ellis today.

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.