Treaty Trader and Investor visas offer nationals of countries with the requisite Treaties with the United States (*see below for list of countries) the opportunity to come to the United States to work, direct and control a business that they have established.
Although technically a temporary or non immigrant visa, the Treaty Trader or investor can expect to have the visa renewed for as long a period as the business continues in operations.
Furthermore, due to a recent change on the law, the spouse of a Treaty Trader or investor may obtain work authorization as long as the principal remains in status.
To qualify as a Treaty Trader (E-1):
- The firm in the US must have the nationality of a treaty country.
- The applicant must be a national of the treaty country.
- The international trade must be “substantial”; there must be a sizable and continuing volume of trade.
- The trade must be principally between the US and the treaty country, which is defined to mean that more than 50% of the firm’s international trade involved must be between the US and the country of the applicant’s nationality.
- Trade means the international exchange of goods, money, services, or technology. Title of items must pass from one party to another.
- The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the operation of the firm.
The term “trade” is defined to include commercial intercourse in goods and trade in services and technology. This includes banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, technology transfer, and other measurable services which can be traded.
To qualify as a Treaty Investor (E-2):
- The investor (either a real or corporate person) must be a national of a treaty country.
- The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost enterprise must be higher than the percentage of investment in a high-cost enterprise.
- The investment must be a real operating enterprise. Speculative or idle investment does not qualify.
- The investment must not be marginal. It must generate significantly more income than needed to provide a living to the investor and family, or it must have a significant economic impact in the United States.
- The investor must have control of the funds, and the investment must be at risk in the commercial sense. For the purpose of measuring the investment, loans secured with the assets of the investment enterprise are not counted.
- The investor must be coming to the US to develop and direct the enterprise. If applicants are not the principal investors, they must be employed as a supervisor, executive, or as the possessor of highly specialized skills.
Must the trading company exist and/or the investment have been made before the visa can be issued?
Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, such as in an escrow account, contingent only upon the issuance of the visa. Investment funds may come from any country, including the United States, as long as they are controlled by the investor applicant.
What is a substantial amount of capital?
There is no fixed amount which is considered “substantial.” A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test. The proportionality test compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.
Normally a minimum investment of $100,000 will be required, although this may be reduced in the event that a certain business simply does not require such an investment. An absolute bare minimum of $75,000 will likely be required, although the rules envisage that $50,000 may be suitable in certain circumstances.
Furthermore, the investment may not be marginal. This means that the investment must do more than just provide a living for the investor. This requirement is normally met by the employment of at least one US citizen or proof that the investor has independent means of surviving other than the business, such as a separate source of retirement income.
Are joint ventures/partnerships permitted?
Yes, provided that the business or individual investor applying for the visa is in a position to “develop and direct” the enterprise. The applicant is in such a position by controlling the enterprise through ownership of at least 50% of the business, possessing operational control through a marginal position or other corporate device, or by other means showing the applicant controls the enterprise.
How long may the Treaty Trader or Investor stay in the US?
The applicant must have the intention of departing the US upon conclusion of the commercial activities. Nevertheless, holders of E-visas may reside in the US as long as they continue to meet E-visa qualifications. A potentially indefinite stay is thus available.
Is a visa available to the applicant’s wife and children?
Yes. Spouses and children under age 21 qualify for derivative E-visas based on the principal applicant’s qualification. It is not necessary that they hold the nationality of the principal applicant.
Pursuant to recent change son the law, dependent E-visa spouses are also allowed to work in the United States.
Countries that qualify for E-1 & E-2 visas
Argentina, Australia, Austria, Belgium, Bosnia-Herzegovina, Canada, China, Colombia, Costa Rica, Estonia, Ethiopia, Finland, France, Georgia, Germany, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Korea, Liberia, Latvia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Slovenia,Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, Yugoslavia.
Countries that qualify for E-1 visa only
Bolivia, Brunei, Denmark,Greece, Israel,
Countries that qualify for E-2 visa only
Albania, Armenia, Bangladesh, Bulgaria, Cameroon, Democratic Republic of Congo, Republic of Congo, Czech Republic, Ecuador, Egypt, Grenada, Kazakhstan, Kyrgyz Stan, Moldova, Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovak Republic, Trinidad & Tobago, Tunisia, Ukraine
Source:JONATHAN CHARLES CAPP, CALIFORNIA LAWYER, AND ENGLISH BARRISTER