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)

The E-1 visa, also known as the Treaty Trader visa, is a nonimmigrant classification for nationals of countries with which the United States maintains a treaty of commerce and navigation. It allows individuals to enter the U.S. to engage in substantial trade, primarily of goods, services, or technology, between the U.S. and their home country. The visa is designed for business owners, managers, or employees with essential skills who share the nationality of the principal trader. To qualify, the trade must be substantial and primarily between the U.S. and the treaty country, and the business must be at least 50% owned by nationals of the treaty country. Below are its main requirements:

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)

Likewise,  E-2 visa, known as the Treaty Investor visa, is a nonimmigrant classification for nationals of countries with which the United States has a treaty of commerce and navigation. This visa allows individuals to enter the U.S. to develop and direct the operations of an enterprise in which they have invested a substantial amount of capital. The investment must be significant relative to the total cost of the enterprise and not marginal, meaning it should generate more than enough income to support the investor and their family or have a substantial economic impact in the U.S. The business must be at least 50% owned by nationals of the treaty country, and the investor or key employees must hold the same nationality. Below are its main requirements:

Eligibility Requirements:

  • The Business: Must involve substantial capital investment, not merely marginal for earning a living. This means the business must have the ability to hire and employ U.S. employees.
  • The Foreign National: Can be the owner or an employee in an executive, supervisory, or essential skills capacity. Employees must share the nationality of the principal employer.
  • Nationality: The principal must be a national of the treaty country or an employee of an enterprise at least 50% owned by such nationals.

Application Process:

  • E-2 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, with denials detailed and certified if complex or novel.

Investment Amounts and Principles of Proportionality:

  • Substantial Investment: The investment must be significant in relation to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration. For example, if the applicant intends to purchase and operate an ice cream shop, then the minimum investment amount might be around $100K. But if the applicant intends to build cars, then the minimum investment amount would be in the millions of dollars.
  • Marginal Enterprises: As stated above, investments solely for earning a living do not qualify. The business must have the capacity to generate more than enough income to provide a minimal living for the investor and their family, or it must have a significant economic impact in the U.S.
  • Proportionality Principle: The amount invested should be substantial in relation to the total cost of the enterprise. This principle is assessed by comparing the investment to the total value of the business. For example:
    • A low-cost enterprise requires a higher percentage of investment.
    • A high-cost enterprise can qualify with a lower percentage of investment if the dollar amount is substantial.

  • Types of Investment: Includes cash, equipment, inventory, other tangible properties, and secured loans. The investor must place the capital at risk for the purpose of generating a profit, and the investment must be irrevocable.

Technical Issues:

  • Ownership by nationals of the treaty country must be at least 50%.
  • Precedent decisions help clarify eligibility and employment capacities, such as managerial roles and substantial investment levels.

3. Work Authorization for Spouses

Spouses of E nonimmigrants are eligible to apply for work authorization, enhancing the benefits of these classifications for family members.