Persons coming to the United States to carry on substantial trade (E-1) or to direct and develop investments involving a substantial amount of capital (E-2) may be accorded status as an E nonimmigrant. If the applicant is not the principal investor or owner of the treaty-investment or treaty-trader company, he or she must be employed in an executive or supervisory capacity or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
E-1 or E-2 nonimmigrant status authorizes a person to remain in the U.S. only in connection with the management of the business that is the basis of his or her visa application. Thus, an E-1 or E-2 principal is not authorized to work in the U.S. for an employer other than the treaty company. Dependent spouses of E-1 or E-2 principals, however, are entitled to “open market” work authorization during the validity of the principal’s authorized period of stay. Both treaty traders and treaty investors must intend to depart when their statuses terminate. Nonetheless, holders of E visas may reside in the United States as long as they continue to maintain status with their enterprises, and many traders and investors properly remain in E status for years – even decades.
E-visa classification is only available to nationals of a country that has entered into an appropriate commercial agreement with the United States. Information regarding which countries have treaties that support E-1 and E-2 status, and which countries have treaties limited to either E-1 or E-2 classification, is available on the State Department’s Visa Reciprocity Table.
E-1 classification is available to a person coming to the United States solely to carry on “substantial” trade, including trade-in services or trade-in technology, principally between the United States and the foreign state of which he is a national. A pattern of many small-value transactions can suffice if substantial in the aggregate. More than half of the total volume of international trade conducted by the treaty trader, however, must flow between the United States and the treaty country.
Trade-in services include, but are not limited to, banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.
E-2 classification is available a person coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a “substantial” amount of capital. As used to describe the required investment, “substantial” indicates that the amount invested is sufficient to ensure the investor’s financial commitment to the successful operations of the enterprise and supports the likelihood that the investor will successfully direct and develop the enterprise. The substantiality of an investment is determined by the application of a “proportionality test.”
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective and be subject to loss if the investment fails. Furthermore, an applicant is not entitled to E-2 classification if the investment, even if substantial, will return only enough income to provide a living for the applicant and his or her family.