Treaty Traders or Investors - E Visa
By James E. Root , Esq.
Los Angeles, CA


The E visa category is available to business owners and employees who need to remain in the United States for extended periods of time to oversee or work in an enterprise that represents a major investment in, or substantial trade with, the United States. In order to be eligible for an E visa, there must be a Treaty of Friendship, Commerce and Navigation between the United States and the country of nationality of the foreign national.
E-1 VISA CATEGORY
To qualify for an E-1 trader visa, a foreign businessperson must be seeking entry into the United States to carry on "substantial trade in goods or services in a capacity that is supervisory or executive or involves “essential skills.” E-1 visas were previously restricted to a trade of goods and specific services. NAFTA has since expanded the scope so that trade can be in goods or services without specification or restriction.
The term "trade" means the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include but are not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.
As a Treaty Foreign National (TFN), you may be issued a treaty trader E-1 nonimmigrant visa if all of the following requirements are met:
• You or your firm is a TFN (at least 50% of the company stock is owned by TFNs)
• You enter the United States to carry on substantial trade (more than 50%) between your US business and a TFN country
• A treaty must already exist at the time you apply for E-1 status
• You engage in executive or managerial duties or possess special skills that make your services essential to the employer's operations
• You promise to leave the United States upon termination of this status
Countries with Treaties for E-1 Visas
Argentina, Aruba, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Gibraltar, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Netherlands Antilles, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Serbia Montenegro, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Yugoslavia, Wallis & Futura Islands, Western Sahara.
E-2 VISA CATEGORY
To qualify for an E-2 investor visa, the applicant must develop and direct operations of an enterprise in which he has invested or is actively investing a substantial amount of capital. As a foreign citizen, you may be issued an E-2 nonimmigrant visa if all of the following requirements are met:
• You or the firm are TFNs (at least 50% of the company stock is owned by TFNs)
• You or the firm for which you work will invest or have invested substantial capital, which is at risk, meaning subject to potential loss if the business does not succeed, in a bona fide enterprise in the United States. The term "substantial" means:
1. The investment must be significantly proportional to the total investment (usually more than half of the value of the business).
2. An amount normally considered necessary to establish a new business.
You engage in executive or managerial duties or possess special skills that make your services essential to the employer's operations:
1. An executive position provides the employee great authority to determine the policy of and direction for the business or a major component of the business. The executive functions must be the primary functions of the employee, and not just incidental or collateral to other duties.
2. A supervisory position grants the employee ultimate control and responsibility for a large proportion of the enterprise's operations or a major component of the enterprise. It does not involve the supervision of low-level employees. The supervisory element of the employee's position must be a principal and primary function, and not an incidental or collateral function.
3. The essential nature of a foreign national's "special skills" is determined by assessing the degree of proven expertise of the foreign national in the area of specialization, the uniqueness of the specific skills, the length of experience and training with the firm, the period of training needed to perform the contemplated duties, and the salary the special expertise commands.
Countries with Treaties for E-2 Visas
Albania, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bangladesh, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Democratic Rep. of the), Congo (Rep.), (Kinshasa), Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Gibraltar, Grenada, Haiti, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldavia, Mongolia, Morocco, Mozambique, Netherlands, Netherlands Antilles, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Serbia Montenegro, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Uzbekistan, Yugoslavia, Wallis & Futura Islands, Western Sahara.
There is no limit as to the number of years an employee can remain in valid E visa status. Procedurally, a US Consulate in the treaty country generally reviews E visa applications. Thus, these applications can bypass review by the US Citizenship and Immigration Services. In light of the annual shortages in H1B visas, capped at 65,000 visas, E visa is often viewed by many as an ideal alternative.
For more information and a “free” initial legal consultation please contact Immigration Attorney James E. Root at 1(888) ROOT-LAW or visit his website at www.RootLaw.com. Mr. James E. Root heads an Exclusive Immigration Law practice with two offices in Southern California.



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Editor: Akhtar M. Faruqui
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