E-1 Treaty Trader Visas and E-2 Treaty Investor Visas

The Immigration and Nationality Act ("INA") gives special status to citizens of countries which have entered into treaties with the United States. E-1 trader and E-2 investor visas offer benefits which are not available in many other non-immigrant categories. For example, E visa holders can extend the duration of their visas almost indefinitely and do not have to show ties to their home country as long as they affirm that they will leave the United States when the period of their authorized stay (including any extensions) ends. They can also engage in self-employment as entrepreneurs, which is not permitted in most other nonimmigrant categories.

Visas Required for Canadians

While Canadians are visa-exempt for most categories, 212.1(l) of the immigration regulations ("8 CFR") specifically requires any alien seeking admission as a treaty trader or investor under the provisions of NAFTA must be in possession of a nonimmigrant visa issued by an A merican consular officer classifying the alien under that section.

Only two consular posts in Canada process E visas. As of January 3, 2006, the United States Consulate General in Vancouver processes E visa cases for British Columbia and Yukon. The United States Consulate General in Toronto processes all E visa cases for Ontario, Alberta, Manitoba, New Brunswick, Newfoundland, NW Territories, Nova Scotia, Nunavut, PEI, Quebec, and Saskatchewan.

If the Canadian is already in the United States under another category, it is also possible to apply for a change of status to E from within the United States. However, if the Canadian leaves the United States and attempts to re-enter, he will still need an E visa issued by a U.S. consulate abroad. The automatic visa revalidation provision available at 22 CFR 41.112(d) will not help a Canadian in this case since he or she will not have a visa to revalidate.

Consulates generally believe that they should be adjudica ting E visa cases rather than USCIS (formerly INS) so they will reconsider the case themselves before deciding to issue a visa. In most cases, Canadians seeking E classification are better off applying at a U.S. consulate abroad, even if they are eligible for a change of status.

That said, it might be appropriate to seek a change of status in cases where the alien must commence work pursuant to E status immediately and cannot wait for an E visa case to be adjudicated abroad. In such cases, a change of status might be useful as a short-term measure while the alien's case is pending at the consulate. Also, in cases where the alien's E case is too weak to be approved through the consulate in his or her home country, it might be appropriate to file a change of status request and then seek an E visa later, once the business has grown.

Existence of Treaty

INA 101(a)(15)(E) requires the existence of a treaty of Friendship, Commerce, and Navigat ion ("FCN") between the United States and another country in order for the E visa classification to be granted to nationals of that country. Similarly, the term "treaty country" is defined in 22 CFR 41.51(a)(5)/22 CFR 41.51(b)(5) as a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. 22 CFR 41.51(a)(5)/22 CFR 41.51(b)(5) also clarifies that a treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA). This essentially recognizes the existing E visa eligibility of nationals of the Philippines, Canada and Mexico, which arises from legislation.

A list of treaties or the equivalent in effect between the United States and other countries, which give rise to E classification eligibility, appear in the Foreign Affairs Manual ("FAM"). This list is also reproduced here. The most recent additions to the list of eligible countries are Chile and Singapore. Some treaties permit both E-1 and E-2 visa eligibility while others only permit either E-1 visas or E-2 visas, but not both.

Required Nationality

To qualify for either treaty trader or investor status, the applicant must possess the nationality of the treaty country. The authorities of the foreign state of which the alien is a national determine the nationality of an individual treaty trader or treaty investor.

The nationality of a business is determined by the nationality of the individual owners of that business. A business that is at least fifty percent owned by nationals of the relevant treaty country will be eligible for E status. Therefore, where two aliens equally own a company, both of which possess different nationality, the company will possess both nationalities.

Applicants who hold dual nationality (other than United States citizenship) may qualify for E status but they must hold themselves out as nationals of the treaty country in question. Consequently, such an applicant must be documented and be admitted into the United States as a national of the treaty country from which the treaty benefits accrue. However, nationals of a treaty country who also hold United States citizenship or United States lawful permanent residence status are not considered nationals of the treaty country for the purposes of E eligibility.

The country of incorporation is irrelevant to the nationality requirement for E visa purposes. However, in cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, the consular officer may presume that the nationality of the corporation is that of the location of the exchange. However, where the stock of a corporation is exchanged in more than one country, the presumption will not apply. In such cases, the applicant will have to establish nationality through other means.

Canadian citizens are eligible for both E-1 and E-2 status as a result of the North American Free Trade Agreement. Canadian landed immigrants are not eligible for E visas unless their country of citizenship has entered into its own treaty of commerce and navigation or bilateral investment treaty with the United States. In addition, the U.S. Consulate General in Toronto will also entertain an E visa application pursuant to a treaty other than NAFTA where the applicant has been in the United States under an employment authorization for at least six months.

Intention to Depart the United States Upon Termination of Status

Pursuant to 22 CFR 41.51(a)(1)(ii)/22 CFR 41.51(b)(1)(iii), an E visa applicant must "intend to depart from the United States upon the termination of his status." However, an applicant does not have to establish an intention to remain in the United States for a specific temporary period of time or the existence of a residence in a foreign country that the applicant does not intend to abandon. The applicant's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific evidence to the contrary.

A limited form of dual intent is recognized for E nonimmigrants. The Department of State ("DOS") position is that an applicant who is the beneficiary of an immigrant petition may still be eligible for E status by showing that she will not remain in the United States to adjust status to lawful permanent resident or otherwise remain in the United States regardless of the legality of his or her status. The USCIS position is that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. In addition, an applicant who has already filed an application for adjustment of status may still file for an extension of E status after that date.

Notwithstanding the above, INA 214(b) still applies to the E nonimmigrants. A prior overstay or violation of status while in the United States will often strongly infer that the applicant does not intend to depart from the United States upon termination of her status and it will be very difficult to overcome such an inference. The only way to overcome the presumption of immigrant intent in such situations is to establish (if possible) that the violation or overstay was brief and inadvertent.

Employees of Principal Aliens

General

An alien employee of a treaty trader may be classified E-1 and an alien employee of a treaty investor may be classified E-2, if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. Employees of treaty traders or treaty investors seeking E status must also have the same nationality as their employer.

In order to support a treaty investor or treaty trader application filed on behalf of an alien employee of a treaty trader or treaty investor, the employer must be:

A person having the nationality of the treaty country, who is maintaining the E-1 or E-2 status if in the United States or if not in the United States would be classifiable as a treaty trader or treaty investor; or An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader or treaty investor status if residing in the United States or if not residing in the United States who would be classifiable a s treaty traders or treaty investors.

In other words, where the employer is residing in the United States in some capacity other than treaty investor or treaty trader, it is not possible to seek treaty trader or treaty investor status on behalf of employees. The same applies in the case of a corporate employer, where more than 50% of the individuals who own the employer are residing in the United States in some capacity other than E-1 or E-2.

Executive or Supervisory Character

Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof. An executive position provides the employee great authority to determine policy of and direction for the enterprise. A supervisory position grants the employee supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees.

In order to qualify as an executive or supervisory employee, the executive or supervisory element of the employee' position must be a principal and primary function of the position and not an incidental or collateral function. For example, if the position principally requires management skills or entails key supervisory responsibility for a large portion of a firm's operations and only incidentally involves routine substantive staff work, an E classification would generally be appropriate. Conversely, if the position chiefly involves routine work and secondarily entails supervision of low-level employees, the position could not be termed executive or supervisory.

In determining whether the proposed position is executive or supervisory, consular officers will consider the title of the position, its place in the company's organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the compan y's overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience.

Essential Skills

The applicant bears the burden of establishing at the time of application not only the need for the special qualifications that he or she offers but also the length of time that such skills will be needed. In general, the E classification is intended for specialists and not for ordinary skilled workers.

Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise. The essential nature of the alien's skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or a ptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary that the special qualifications can command.

Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application, on a case-by-case basis. In assessing the specialized skills and their essentiality, the consular officer should consider such factors as:

The degree of proven expertise of the alien in the area of specialization; The uniqueness of the specific skills; The function of the job to which the alien is destined; and The salary such special expertise can command.

The availability of U.S. workers provides another factor in assessing the degree of specialization the applicant possesses and the essentiality of this skilled worker to the successful operation of the business. This consideration is not a labor certificati on test, but a measure of the degree of specialization of the skills in question and the need for such skills. For example, a TV technician coming to train U.S. workers in new TV technology not generally available in the U.S. market probably would qualify for a visa. If the essential skills question cannot be resolved on the basis of initial documentation, the consular officer might ask the firm to provide statements from such sources as chambers of commerce, labor organizations, industry trade sources, or state employment services as to the unavailability of U.S. workers in the skill areas concerned.

There is no requirement that an "essential" employee have any previous employment with the treaty enterprise. The only time that such previous employment is a factor is when the needed skills can only be obtained by that employment.

There are two distinct types of essential skills workers: (a) short-term essential skills workers, and (b) long-term essential skills workers. Each type is briefly discussed below.

Short Term Essential Skills

In the case of short-term essential workers, the employer may need the skills for only a relatively short period of time when the purpose of the employee's admission relates to start-up operations (of either the business or a new activity by the business) or to the training and supervision of technicians employed in manufacturing, maintenance and repair functions. Ordinarily skilled workers can qualify as essential employees but this almost always involves workers needed for start-up or training purposes.

A new business or an established business expanding into a new field in the United States might need employees who are ordinarily skilled workers for a short period of time. Such employees derive their essentiality from their familiarity with the overseas operations rather than the nature of their skills.

Employers in such cases are expected to train United States workers to replace these employees, usually within one or two years. Short-term essential skills workers are therefore in a less desirable position than L-1B specialized knowledge workers, who are not required to demonstrate that U.S. workers will be trained to replace them.

Long Term Essential Skills

Long-term essentiality may be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States. If an applicant establishes that she has special qualifications and, on a long-term basis, these qualifications are essential for the efficient operation of the treaty enterprise, the training of United States workers as replacement workers is not required. It should therefore be possible for such an employee to remain in the United States, in either E status, for an indefinite period of time.

The precedent decision relating to long-term essential skills workers is Matter of Walsh and Pollard, 20 I. & N. Dec. 60 (BIA 1988). The employees in that case were automotive design engineers from Britain who were coming to the United States (pursuant to a contract between the treaty investor and General Motors) for the purpose of redesigning General Motors' line of cars in a smaller more European fashion. It was established that a worker with an engineering degree would still require approximately ten years of training to become an automotive design engineer and that there were not sufficient numbers of United States automotive design engineers to fill the present needs of the automotive industry. The Board of Immigration Appeals ("BIA") concluded that the employees were long-term essential skills workers and the treaty investor was not expected to replace the employees with U.S. workers in the future.

Labor Disputes (Canadian and Mexican Citizens Only)

Because of the terms of the NAFTA, citizens o f Canada or Mexico are not entitled to E classification if the Attorney General and the Secretary of Labor have certified that:

There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and The alien has failed to establish that the alien's entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.

E-1 Treaty Trader Visa -- Specific Requirements

General

The E-1 treaty trader visa is available to enterprises engaged in trade with the United States. Treaty traders must be entering the United States solely to carry on trade of a substantial nature, which is international in scope, principally between the United States and the treaty country. In the case of an E-2 employee of the business, the employee must be working in an executive, supervisory, or essential skills capacity.

Definition of "Trade"

The word "trade" is defined in 22 CFR 41.51(a)(7) as the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties which call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other. According to 22 CFR 41.51(a)(8), items which qualify as items of trade include but are not limited to goods, services, technology, banking, insurance, transportation, tourism, communications, and some news gathering services.

Trade Must Be in Existence

The treaty country must show a continued course of trade so it must have already commenced prior to the alien applying for E status.

Trade Must Be International

The above definition of "trade" requires an international exchange of items of trade for consideration between the United States and the treaty country. Development of the domestic market without international exchange does not constitute trade in the E-1 visa context. Thus, engaging in purely domestic trade is not contemplated under this classification. The traceable exchange in goods or services must be between the United States and the other treaty country.

Trade Must Be Substantial

According to 22 CFR 41.51(a)(9), "substantial trade" entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item is relevant, greater weight is given to more numerous exchanges of larger value.

Large corporations engaged in international trades of high monetary value would have no pro blem establishing that their trade was substantial, as long as they were engaged in more than one transaction. In the case of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family.

Trade Must be Principally Between the United States and the Treaty Country

The term "principal trade" is defined as meaning where at least 50% of the total volume of the foreign business's international trade is between the U.S. and the treaty country. Accordingly, domestic U.S. trade is not considered when calculating the percentage of principal trade.

To measure the requisite trade one must look to the trade conducted by the legal entity that is seeking eligibility as the treaty trader. As a subsidiary is a separate legal entity from its parent, a U.S. subsidiary could qualify as a treaty trader even if its foreign parent corporation was engaged in any trade between the United States and the treaty country. However, the U.S. branch of a foreign parent corporation would not be considered a separate legal entity.

E-2 Treaty Investor Visa -- Specific Requirements

General

The E-2 is available to nationals of the treaty country who are engaging in investment in the United States. The investor must show that she has invested or is actively in the process of investing a substantial amount of capital in a real and operating commercial enterprise, other than a marginal one solely to earn a living for the investor and her dependents. He or she must also be in a position to "develop and direct" the enterprise.

Investment Must Be at Risk

The concept of investment connotes the placing of funds or other capital assets at risk, in the commercial sense, in the hope of generating a return. If the funds are not subject to partial or total loss if business fortunes reverse, then it is not a n investment. Therefore, the funds must be committed and personally at risk in order to qualify and the business must be an active and substantial investment.

Indebtedness secured by the assets of the business is not considered a qualifying investment. This is true even where personal assets in addition to the assets of the business secure the indebtedness. However, unsecured loans or loans secured solely by the alien's own personal assets are considered qualifying investments.

Investment Must be Irrevocably Committed

Investment capital that is "in the process of being invested" must be irrevocably committed to the enterprise. However, it is possible to use various legal mechanisms, such as holding funds in escrow, to establish the necessary commitment of funds. For the alien to be "in the process of investing", the alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouti ng for suitable locations and property.

A mere intention to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment, will not suffice. However, a reasonable amount of cash, held in a business bank account or similar fund to be used for routine business operations, may be counted as part of the investment funds.

Other Assets as Part of the Investment

Payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business. However, more than one month of payments may be counted if they are made in advance.

The amount spent for the purchase of equipment and for inventory already in the possession of the applicant may be counted as part of the qualifying investment. The val ue of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise.

Real and Commercial Enterprise

The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. A shell company, passive investment, or uncommitted funds do not qualify as they do not require the intent to direct or develop a commercial enterprise. However, an active real estate development would be a qualifying enterprise.

Investment Must Be Substantial

According to INA 101(a)(45), the term "substantial" means "such an amount of trade or capital as is established by the Secretary of State, after consultation with appropriate agencies of Government." The DOS position continues to be that there is no set minimum dollar amount that will be considered "substantial" for the purpo ses of E-2 eligibility. The FAM states that, as long as all the other requirements for E-2 status are met, the cost of the business per se is not independently relevant or determinative of qualification for E-2 status. While a manufacturing business might easily cost millions of dollars, the cost of purchasing or establishing a consulting firm may be relatively low.

A definition of the phrase "substantial amount of capital" within the context of an E-2 investment is now defined at 22 CFR 41.51(b)(9) as an amount which is:

Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under construction; Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

For the most part, this definition reiterates the "proportionalit y test" described in the FAM. In order for an investment to be substantial, it must be proportional to the total value of the business. The definition also requires a sufficient investment to support the likelihood that the business will be successful.

The FAM states that the requirement of substantiality is met by satisfying the "proportionality test." It defines the proportionality test as a comparison between two figures:

The amount of qualifying funds invested; and The cost of an established business or, if a newly created business, the cost of establishing such a business.

The cost of an established business is, generally, its purchase price, which is normally considered to be the fair market value. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational.

Neither the above definition nor the FAM describe a minimum required investment for E-2 eligibility. The FAM used to include s everal examples of acceptable proportionality at various levels of investment. However, these examples have since been deleted from the FAM since too many consular officers were using them as bright line tests.

In practice, the quantum of the investment is still unofficially considered. In the past, the U.S. Consulate General in Toronto has readily accepted $50,000.00USD investments. This is perhaps because the FAM previously referred to an investment of $50,000.00USD (it requires a percentage of investment approaching 90-100% of the total value of the business) as an example of a substantial investment. However, consulates in other countries often require a higher investment amount.

Investment Must Not Be Marginal

The alien must not be investing in a marginal enterprise solely for the purpose of earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a mini mal living for the treaty investor and his or her family.

At one point, consular officers were permitted to consider other sources of income in determining whether the treaty business was marginal. Unfortunately, 22 CFR 41.51(b)(10) now precludes establishing that the business is not marginal by providing evidence of other sources of income or financial means.

22 CFR 41.51(b)(10) also states that an enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. However, the projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.

Ability to Develop and Direct the Enterprise

A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business. The ability to develop and direct can be establish ed by owning at least 50% of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means. Factors considered include ownership, control of stock by proxy, management position and authority, etc.

Duration of Stay and Extensions

E visas are generally valid for a period of five years or less. The maximum visa duration permitted will depend upon the nationality of the alien. The maximum period allowed for each nationality can be determined by referring to the Reciprocity Schedules contained in the FAM. For example, the maximum duration of a treaty trader or investor visa for Canadian citizens is 60 months, or five years. It is important to remember that a consular officer may choose to grant an E visa for a shorter period of time.

Despite the fact that E vis as may be valid for up to five years, pursuant to 8 CFR 214.2(e)(1), treaty traders and investors may not be admitted for an initial period of more than two years and may not be granted extensions of stay in increments of more than two years. Therefore, an alien in treaty trader or investor status with a five year visa will initially be admitted for only two years. He or she can then apply for an extension of stay of two years or simply leave the United States and seek reentry with the valid visa for an additional two years.

There is no limit on the number of extensions allowed under this category.

Dependent Spouse and Minor Children

The dependent spouse and minor child of a treaty trader or investor are entitled to the same classification as the principal alien; the nationality of the spouse or child is immaterial. Dependents may remain in the United States for the duration of the principal alien's stay.

Until recently, they coul d attend school but could not seek employment. However, on January 16, 2002, President Bush signed H.R. 2277 (PL 107-124) into law. This law now permits spouses of treaty traders and investors to obtain employment authorization. This eligibility is effective as of the date of enactment. In a memorandum to field offices dated February 22, 2002, the INS explained that the spouse must obtain an employment authorization ("EAD") by filing Form I-765 with the required fee and evidence of his or her relationship to the principal alien before being permitted to work.