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

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The treaty trader (E-1) and treaty investor (E-2) visas are available to nationals of certain nations with which the United States has treaties of commerce. Not every treaty of commerce provides for both visas and for some countries only one type of visa is available. Nearly all the European nations, several Asian and South American nations and Mexico and Canada have such treaties with the U.S. Since there any many treaties nearing ratification, it is best to contact our office for current treaty status.

Common to both visas is the almost unlimited length of time a person might be allowed to remain in the United States. Visas are initially granted for one year and can be renewed for periods not exceeding two years. As long as the treaty remains in effect and the trader or investor meets the current requirements for the visas he can maintain his status and continue to obtain extensions of his stay. Treaty traders and treaty investors are allowed to work, but only for the qualifying business. Spouses and children under 21 years enjoy the same benefits as the trader or investor, except for the fact that they are not allowed to work.

The basic requirement for the treaty trader visas is that the individual engaged in the trade must be a national of the country with which the United States has the appropriate treaty. The individual’s activities in the United States must constitute “trade” of a substantial nature which is international. The “trade” must be principally between the United States and the foreign state of which the individual is a national. Trade not only includes the import and export of goods, but also of services such as engineering, banking, or designing computer software systems.

Ordinarily, the treaty trader is an individual. However, employees of qualified treaty trader individuals or firms may also obtain treaty trader status. To be eligible the employee must be engaged in supervisory or executive duties or have specific qualifications that make the employee’s services essential. The employee must be of the same nationality as the primary treaty trader or company. The nationality of a company is established by a set of complex rules and guidelines. Generally, if 51% of the company is owned by nationals of the treaty country, who are not permanent residents of the United States, the company will qualify.

A treaty investor, like the treaty traders, must be a national of the country with which the United States has the appropriate treaty. If a company is the investor, the company must be of the nationality of the treaty country. The nationality of the company is established by the same rules as for treaty traders. The individual must have invested or be in the process of investing a substantial amount of “at risk” capital in an enterprise in the United States. The investment may not be passive, such as bonds, stocks and treasury notes. The investment must be in an enterprise. What constitutes a substantial amount depends on the nature of the business. The amount invested is compared to either the total value of the enterprise or the amount normally considered necessary to establish the particular enterprise. Occasionally the dollar amount of the investment alone will be so great as to afford treaty investor status.

The treaty investor is allowed to come to the United States to develop and direct the enterprise. To meet this requirement the investor must have an active role in managing the business. Thus, ownership of stock or an investment in unimproved land (assuming no development is contemplated) would not qualify. However, the E-2 investor does not have to be involved in the day-to-day affairs of the enterprise. As with any temporary visa, the treaty trader and treaty investor must have the intent to depart from the United States once their status has ended.