E1 Trader and Treaty Investor Visa

U.S. Visas for International Investors

Are you an International Investor who wants a U.S. Visa?

*E-1 Trader & E-2 Treaty Investor Visa - are non-immigrant visas which allow an alien to come to the United States to invest in a new business or to purchase an existing business. An E-1 visa pertains to an international trader whereas an E-2 pertains to an international investor. The E visa category is an extremely useful means by which individuals from certain privileged countries can remain in the United States for an indefinite period of time after having made an investment in a U.S. based business. The traders and/or investors are permitted to remain in the United States for the entire period that the underlying investment remains in place.

Their spouses and children under the age of 21 are also permitted to remain in the U.S. and to attend school. The spouse of the principal investor can now obtain work authorizations during the period where the E class visa is in effect. Treaty visas are available for aliens who wish to purchase an existing business and also for those who wish to start-up a new business. There is no restriction on the type of business that may be opened or operated. The business could be small in size or a multi-million dollar corporation.

Requirements to obtain a Treaty Visa

Do you think you can qualify for a Treaty Visa?

There must be an Existing Treaty between the United States and The applicant's Country of nationality – A Friendship and Commerce Treaty and/or a Navigation and Commerce Treaty must exist between the foreign country and the United States.

The Alien Applicant Must Be A National of The Treaty Country – The Immigration and Nationality Act defines the term "national" as "a person owing permanent allegiance to a state." Generally, presentation of a passport issued by one of the listed countries suffices to demonstrate nationality.

The Company Must Be "Qualifying" Under The Treaty – The company that is petitioning or the alien investing must be at least 50% owned by the qualifying foreign National. However, under the "Control and Management" requirement, it is advised that the alien owns at least 51% of the qualifying corporation.

Evidence of Substantial Investment in the U.S., and Such Investment Must Be At Risk – This Requirement has three Components as follow:

1) "Investment" must be personal investment. Therefore, although an investment can be a loan, it must be a personal loan that the applicant will be personally liable for the loan in case the business fortunes reverse.

2) "Substantial" investment is a proportionality test. Although there is no specific amount of dollars the applicant must invest, the State Department expresses its view that to be "substantial" an investment amount must be large enough to have a good chance of resulting in a successful enterprise. Under Matter of Walsh and Pollard, 20 I. & N. Dec. 60, 63 (BIA 1988), the Board of Immigration Appeals held that substantial investment of $15,000 was sufficient for the business that the investors sought to start. In practice, it is advised that the investor contributes at least $50,000 of personal funds to show "substantiality."

3) Additionally, the investments must be "At Risk" of potential business loss, and must show that the funds are irrevocably committed to the investment (i.e. the investment must be "active" and not "passive"). Although an investor can usually show that the funds are at risk by purchasing an existing business, or starting a new business by having a lease agreement signed and/or purchases of equipment and supplies, funds placed in escrow with disbursement contingent only on visa issuance, and then irrevocably committed to the enterprise, will satisfy the requirement, because the investor will have "progressed to the point of no return."

The Qualifying Investor Must Have Control And Management of His Investments – The State Department holds that to qualify as coming to the United States to "develop and direct" an investment enterprise, a foreign national should have a controlling interest in the enterprise. In the past, an interest of 50 percent or less was considered inadequate to demonstrate control. More recently, consideration has been given to the ability of 50 percent owners to control the direction of an enterprise by veto power. Both The Consular and State Department proposed regulations state that 50 percent ownership of an enterprise, or de facto control where there is less than 50 percent ownership, can satisfy the controlling interest requirement. As a precaution, it is advised that the alien owns 51% of the corporation to show that he/she has management and control of such a corporation.

Do you have more questions on an Investor Visa? Call us now.

Intent To Depart – Unlike some other nonimmigrant categories, E non-immigrants do not need to have a residence outside the U.S. that they have no intention of abandoning. Also, unlike most other nonimmigrant categories, E non-immigrants do not need to show that they are coming to the U.S. for a specific period of time. An E-2 investor visa allows a foreign national to stay in the U.S. to manage and direct the investment enterprise for an indefinite period, and E-2 non-immigrants may properly stay in the U.S. for many years (however, as discussed below, E-2 visas have differing fixed periods of validity, and E-2 non-immigrants are admitted for definite periods of stay, which may be extended). Nonetheless, E visas are nonimmigrant visas. Thus, the Applicant must state that he or she intents to depart once his/her E-2 terminates.

One of the advantages of an E-2 Visa is that there is no limited duration in which the investor can remain in the U.S. The person can remain indefinitely so long as he is maintaining his status requirements under the controlling issues discussed above. Unlike other visas, such as H-1B, the spouse may also obtain a work permit and work for whomever he/she so chooses. Because the Friendship and Commerce Treaty or the Navigation and Commerce Treaty requires the U.S. to treat an E-2 treaty investor as its own citizen, the E-2 investor can obtain all required permits to operate his business, just as a U.S. citizen. Lastly, children accompanying E-2 investors can attend U.S. schools (including public schools) at resident rate (1/3 less than foreign student rates).