E-1 Treaty and E-2 Investor Work Permits

Overview

This short guide focuses on the major points that govern E-1 Trader and E-2 Investor visas under bilateral Free Trade Agreements, such as the USMCA. These work permits, while strictly non-immigrant intent visas, create a pathway to purchase or open a new business in the United States for citizens of countries with bilateral trade agreements with the U.S.

Applications for E visas are made at a consular office overseas or, for those already in the U.S., using Form I-129 or Form I-539 as applicable. They are not petitioned at a US Port of Entry.

1. Treaty Traders (E-1)

Eligibility Requirements:

• The Business: Must be engaged principally and substantially in trade between the U.S. and the treaty country.
• The Foreign National: Can be the owner or an employee of the enterprise in a supervisory, executive, or essential skills capacity. Employees must share the nationality of the principal employer.
• Nationality: The principal employer must be a person or enterprise in the U.S. with at least 50% ownership by nationals of the treaty country.

Application Process:

• E-1 status can be obtained directly through the Department of State, i.e. by submitting an application to a U.S. consulate, or by applying to the appropriate service center in the U.S. using Form I-129.
• Supporting documents should establish the nature of employment and ownership of the enterprise.

Approval and Denial:

• Approved applications are issued Form I-797 for up to two years, extendable in two-year increments. There is no limit on the number of renewals a person can obtain.
• Denials include specific reasons, with no appeal, though novel or complex cases may be certified to the Administrative Appeals Office.

Technical Issues:

• The definition of “trade” includes goods, services, technology, and other items with intrinsic value.
• Employment must be in a managerial or special technical knowledge capacity.

Definition of Trade:

• Goods: Tangible items exchanged in substantial quantities, such as machinery, clothing, and food products.
• Services: Activities performed for a fee, including banking, insurance, transportation, and tourism.
• Technology: Exchange of technical data, patents, and software.
• Tourism: Includes services related to travel and hospitality.
• Other Intangibles: This broad category can include intellectual property, legal services, and other non-tangible items with intrinsic value.

The trade must be substantial, which means it must involve a continuous flow of sizable international trade items between the U.S. and the treaty country. It must also occur principally between these entities, ensuring that more than 50% of the total volume of international trade is between the U.S. and the treaty country.

2. Treaty Investors (E-2)

The E-2 Treaty Investor Visa offers a valuable opportunity for entrepreneurs and business professionals from treaty countries to live and work in the United States by investing in and directing a U.S.-based business. This nonimmigrant visa is designed to promote international investment and economic development and provides a flexible pathway for foreign nationals to operate a commercial enterprise in the U.S.

What Is the E-2 Visa?

The E-2 visa allows nationals of certain countries that have a qualifying treaty with the United States to enter and work in the U.S. based on a substantial investment in a U.S. business. It is commonly used by individuals launching new ventures, expanding foreign businesses into the U.S., or purchasing existing businesses.

Key Benefits

• E-2 visas are typically granted for up to 2–5 years and can be renewed indefinitely, as long as the investment enterprise remains operational and compliant.

• E-2 spouses can apply for work authorization, and dependent children under 21 can attend school in the U.S.

• There is no fixed minimum investment amount, which makes the visa accessible across different industries and business sizes.

Who Qualifies?

To qualify for an E-2 visa, the applicant must meet all of the following requirements:

Treaty Country Nationality
The applicant must be a national of a country with which the U.S. maintains a treaty of commerce and navigation. The business must be at least 50% owned by individuals holding that same nationality.

Substantial Investment
The investor must have invested, or be actively in the process of investing, a substantial amount of capital in a U.S. enterprise. The amount must be sufficient to ensure the successful operation of the business. There is no formal minimum, but the investment must be proportional to the cost of the enterprise. For lower-cost businesses, a higher percentage of the total cost is typically required.

Real and Operating Enterprise
The business must be active and engaged in commercial activity. Speculative or idle investments such as undeveloped land or stocks do not qualify.

Not a Marginal Enterprise
The business must be able to generate more than just minimal living income for the investor and their family or have a meaningful economic impact in the U.S. This can include job creation or supplying goods or services that contribute to the local economy.

Investor’s Role
The applicant must be coming to the U.S. to develop and direct the business. This usually means the investor holds a controlling interest or has a key managerial role. E-2 visas are also available to employees of E-2 companies who have the same nationality and will serve in executive, supervisory, or essential skills roles.

The Application Process

Applying from Outside the U.S.
Applicants typically apply through a U.S. embassy or consulate in their home country. This involves submitting a Form DS-160, a detailed E-2 supporting package, and attending a visa interview.

Applying from Inside the U.S.
Applicants who are already in the U.S. on another visa may apply to change status to E-2 by filing Form I-129 with USCIS, along with supporting evidence.

Required Documentation

A strong E-2 application typically includes:

• Proof of the investor’s nationality

• Evidence of legal and substantial investment funds

• Business ownership documents

• A detailed 5-year business plan

• Lease agreements, licenses, and contracts

• Financial projections and employment plans

• Proof that the funds are “at risk” and irrevocably committed to the enterprise

Understanding “At Risk” Investment

To qualify, the investment funds must be at risk for the purpose of generating a profit. This means the investor has committed the funds and stands to lose them if the business fails. Loans secured by business assets are permitted, but unsecured personal loans or funds not yet committed typically do not qualify.

Visa Validity, Renewal, and Compliance

E-2 visas are issued for up to five years depending on the applicant’s country of citizenship. Each time the visa holder enters the U.S., they are typically granted a two-year period of stay. There is no limit to the number of extensions or renewals, provided the business continues to operate and meet E-2 requirements.

Work Authorization for Spouses

Spouses and children under 21 are eligible for dependent E-2 visas. Spouses may apply for work authorization. Children may attend school but cannot work while on E-2 dependent status.

Common Pitfalls to Avoid

• Investing in a passive or speculative venture (such as undeveloped land)

• Underinvesting in a business that requires significant startup capital

• Failing to demonstrate a real operational plan or job creation strategy

• Applying without clear evidence of management or essential employee role

Final Thoughts

The E-2 visa can be a powerful tool for eligible investors and entrepreneurs seeking to live and work in the United States. However, the success of an application depends heavily on detailed documentation and a sound business structure. A qualified immigration lawyer can help evaluate your eligibility, prepare your documentation, and develop a strong, strategic application tailored to your circumstances.