December 4, 2018

The Treaty Trader (E-1) and Treaty Investor (E-2) Visas Explained

By Sonia Mann
Attorney, Parikh Law Group

The Treaty Trader (E-1) and Treaty Investor (E-2) visas allow individuals or employees of certain companies to enter into the United States for purposes of carrying on international trade. E-1 and E-2 visas are available to foreign traders and investors from qualifying countries (see for the most up-to-date listing of countries). The goal of this visa category is to promote trade and commerce between the United States and specific countries that have entered treaties for reciprocal commerce and navigation with the US. These treaties allow the foreign nationals of those countries to direct, control, or operate companies located within the United States. E-1 and E-2 Visas require that a foreign investor 1) invest a substantial amount of capital into an enterprise designated for E-category eligibility in the U.S., and 2) carry on substantial trade in areas such as service, goods, banking or technology, between the foreign investor’s home country and the US. Depending upon whether the individual is the investor of a company or an employee, your attorney will advise you as to which E-visa application will be filed on your behalf. E-1 and E-2 visas may also be utilized by foreign nationals who are employed by an E-visa category enterprise as an essential employee and whose entry into the United States is essential to perform their managerial or executive duties.

Since E-2 visas require investment into the U.S., the list of treaty countries for E-2 visas is greater than it is for E-1 treaty countries, in an obvious effort to encourage foreign investment and money coming into our economy. The amount of investment required will depend on the nature of the business and must be large enough to start-up and operate the business, or, in other words, capitalize the venture. The USCIS will use an inverted sliding scale calculation to determine whether the proposed investment is substantial enough in proportion to the overall start-up and operating costs of the business. Once the initial application has received conditional approval, the investor will be requested to present for an interview at a U.S. embassy or consulate in their home country. As part of the embassy interview, the applicant will be required to bring a comprehensive business plan clearly demonstrating that the business will generate enough money to support the principal immigrant and their immediate family during their time in the U.S., along with business registration documents, proof of wire transfer, proof of income, and proof of intent to return to the individual’s home country as this visa is granted on a temporary basis. Specifically, E-1 and E-2 visas do not allow for dual intent, meaning that you cannot intend to stay in the U.S. permanently. However, under federal immigration laws Individuals here on E-1 and E-2 visas may apply for an adjustment of status to immigrant status and create a path to obtaining a green card in this manner, although this brings its own difficult hurdles to overcome. Dual intent is a very tricky legal concept and it is important to have an attorney who has experience and is cognizant of its impact. For example, if you wish to apply for an adjustment of status from E1 or E2 to permanent resident, you must be willing to give up certain rights afforded to you under the trade agreement made with your home country. To do this, you will need to file form I-508, a Waiver of Rights, Privileges, Exemptions and Immunities form. This form is not a mere formality and should not be taken lightly. In waiving certain rights and privileges, there are certain tax implications and other benefits originating from the trade agreement which may become affected. You can also be sponsored for adjustment of status by an employer or family member who is a U.S. citizen, although these types of sponsorships carry their own implications and stringent rules.

There are several hundreds of businesses in the United States, including many franchise chains such as Tim Horton’s and Subway, that are operated and ran by foreign nationals from qualifying countries who are here on treaty investor or trader visas. E-1 and E-2 visas are highly desirable to foreign investors who wish to come to the United States but who do not qualify or have the requisite funds to obtain other visas such as the EB-5. E-2 visas allow for the principal immigrant’s dependents to receive derivative E-2 visas. Dependents would be limited to spouses and unmarried children under the age of 21 only. Spouses are eligible to work once arrived in the United States, and dependent children are eligible to attend schools here until they reach the age of 21. In fact, dependent spouses may accept employment for the company that is forming the basis of the E-2 application and obtain an E-1 visa of their own. Further, while the principal applicant’s brothers, sisters, parents or other family members are not considered derivative dependents, our law firm has strategically handled matters on behalf of clients where we have structured investments into the E category-based company so that other family members have been allowed to receive E-1 and E-2 visas of their own.

If you would like to discuss E-1 and E-2 visas for yourself or your family, the attorneys at Parikh Law Group have years of experience and are happy to help. Please call us at (312) 725-3476 to discuss your immigration matter today.