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Treaty Traders / Investors (E-1/E-2)

E-1 Treaty Traders

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The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on his or her own behalf.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-1 Treaty Traders and Employees” below.)

Who May File for Change of Status to E-1 Classification

If the treaty trader is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-1 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

How to Obtain E-1 Classification if Outside the United States

A request for E-1 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-1 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-1 nonimmigrant.

General Qualifications of a Treaty Trader

To qualify for E-1 classification, the treaty trader must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Carry on substantial trade
  • Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade include but are not limited to:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Some news-gathering activities.

See 8 CFR 214.2(e)(9) for additional examples and discussion.

Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time.  There is no minimum requirement regarding the monetary value or volume of each transaction.  While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.  See 8 CFR 214.2(e)(10) for further details.

Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.  See 8 CFR 214.2(e)(11).

General Qualifications of the Employee of a Treaty Trader

To qualify for E-1 classification, the employee of a treaty trader must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under the relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty trader status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.  See 8 CFR 214.2(e)(3)(ii).

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  See 8 CFR 214.2(e)(18) for a more complete definition.

Period of Stay

Qualified treaty traders and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.  All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-1 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E-1 Status

A treaty trader or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-1 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E-1 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty trader or employee’s previously approved relationship with the organization.  The treaty trader or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty trader or affected employee.  The petition must include evidence to show that the treaty trader or affected employee continues to qualify for E-1 classification.

It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  A treaty trader or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty trader or organization must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-1 treaty trader status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty trader or employee’s ability to obtain E-1 status.  See 8 CFR 214.2(e)(22) for details.

Family of E-1 Treaty Traders and Employees

Treaty traders and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty trader or employee.  These family members may seek E-1 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and seeking change of status to or extension of stay in an E-1 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-1 spouse may work.

As discussed above, the E-1 treaty trader or employee may travel abroad and will generally be granted an automatic two-year period of admission when returning to the United States.  Unless the family members are accompanying the E-1 treaty trader or employee at the time the latter seeks admission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-1 status, and apply for an extension of stay before their own validity expires.

E-2 Treaty Investors

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)

Who May File for Change of Status to E-2 Classification

If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-2 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

How to Obtain E-2 Classification if Outside the United States

A request for E-2 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant.

General Qualifications of a Treaty Investor

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the United States solely to develop and direct the investment enterprise.  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.  The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.  See 8 CFR 214.2(e)(12) for more information.

substantial amount of capital is:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.  It must meet applicable legal requirements for doing business within its jurisdiction.

Marginal Enterprises

The investment enterprise may not be marginal.  A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.  Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.  In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.  See 8 CFR 214.2(e)(15).

General Qualifications of the Employee of a Treaty Investor

To qualify for E-2 classification, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.  See 8 CFR 214.2(e)(3)(ii).

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  See 8 CFR 214.2(e)(18) for a more complete definition.

Period of Stay

Qualified treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.  All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E-2 Status

A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E-2 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.  The treaty investor or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee.  The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification.

It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  A treaty investor or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or organization must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-2 treaty investor status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status.  See 8 CFR 214.2(e)(22) for details.

Family of E-2 Treaty Investors and Employees

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-2 spouse may work.

As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States.  Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.

Treaty Countries

Country Classification Effective Date
Albania E-2 January 4, 1998
Argentina E-1 October 20, 1994
Argentina E-2 October 20, 1994
Armenia E-2 March 29, 1996
Australia E-1 December 16, 1991
Australia E-2 December 27, 1991
Australia E-3 September 2, 2005
Austria E-1 May 27, 1931
Austria E-2 May 27, 1931
Azerbaijan E-2 August 2, 2001
Bahrain E-2 May 30, 2001
Bangladesh E-2 July 25, 1989
Belgium E-1 October 3, 1963
Belgium E-2 October 3, 1963
Bolivia E-1 November 09, 1862
Bolivia E-2 June 6, 2001
Bosnia and Herzegovina E-1 November 15, 1882
Bosnia and Herzegovina E-2 November 15, 1882
Brunei E-1 July 11, 1853
Bulgaria E-2 June 2, 1994
Cameroon E-2 April 6, 1989
Canada E-1 January 1, 1993
Canada E-2 January 1, 1993
Chile E-1 January 1, 2004
Chile E-2 January 1, 2004
China (Taiwan) E-1 November 30, 1948
China (Taiwan) E-2 November 30, 1948
Colombia E-1 June 10, 1848
Colombia E-2 June 10, 1848
Congo (Brazzaville) E-2 August 13, 1994
Congo (Kinshasa) E-2 July 28, 1989
Costa Rica E-1 May 26, 1852
Costa Rica E-2 May 26, 1852
Croatia E-1 November 15, 1882
Croatia E-2 November 15, 1882
Czech Republic E-2 January 1, 1993
Denmark E-1 July 30, 1961
Denmark E-2 December 10, 2008
Ecuador E-2 May 11, 1997
Egypt E-2 June 27, 1992
Estonia E-1 May 22, 1926
Estonia E-2 February 16, 1997
Ethiopia E-1 October 8, 1953
Ethiopia E-2 October 8, 1953
Finland E-1 August 10, 1934
Finland E-2 December 1, 1992
France E-1 December 21, 1960
France E-2 December 21, 1960
Georgia E-2 August 17, 1997
Germany E-1 July 14, 1956
Germany E-2 July 14, 1956
Greece E-1 October 13, 1954
Grenada E-2 March 3, 1989
Honduras E-1 July 19, 1928
Honduras E-2 July 19, 1928
Iran E-1 June 16, 1957
Iran E-2 June 16, 1957
Ireland E-1 September 14, 1950
Ireland E-2 November 18, 1992
Israel E-1 April 3, 1954
Italy E-1 July 26, 1949
Italy E-2 July 26, 1949
Jamaica E-2 March 7, 1997
Japan E-1 October 30, 1953
Japan E-2 October 30, 1953
Jordan E-1 December 17, 2001
Jordan E-2 December 17, 2001
Kazakhstan E-2 January 12, 1994
Korea (South) E-1 November 7, 1957
Korea (South) E-2 November 7, 1957
Kosovo E-1 November 15, 1882
Kosovo E-2 November 15, 1882
Kyrgyzstan E-2 January 12, 1994
Latvia E-1 July 25, 1928
Latvia E-2 December 26, 1996
Liberia E-1 November 21, 1939
Liberia E-2 November 21, 1939
Lithuania E-2 November 22, 2001
Luxembourg E-1 March 28, 1963
Luxembourg E-2 March 28, 1963
Macedonia E-1 November 15, 1882
Macedonia E-2 November 15, 1882
Mexico E-1 January 1, 1994
Mexico E-2 January 1, 1994
Moldova E-2 November 25, 1994
Mongolia E-2 January 1, 1997
Montenegro E-1 November 15, 1882
Montenegro E-2 November 15, 1882
Morocco E-2 May 29, 1991
Netherlands E-1 December 5, 1957
Netherlands E-2 December 5, 1957
Norway E-1 January 18, 1928
Norway E-2 January 18, 1928
Oman E-1 June 11, 1960
Oman E-2 June 11, 1960
Pakistan E-1 February 12, 1961
Pakistan E-2 February 12, 1961
Panama E-2 May 30, 1991
Paraguay E-1 March 07, 1860
Paraguay E-2 March 07, 1860
Philippines E-1 September 6, 1955
Philippines E-2 September 6, 1955
Poland E-1 August 6, 1994
Poland E-2 August 6, 1994
Romania E-2 January 15, 1994
Senegal E-2 October 25, 1990
Serbia E-1 November 15,1882
Serbia E-2 November 15,1882
Singapore E-1 January 1, 2004
Singapore E-2 January 1, 2004
Slovak Republic E-2 January 1, 1993
Slovenia E-1 November 15, 1882
Slovenia E-2 November 15, 1882
Spain E-1 April 14, 1903
Spain E-2 April 14, 1903
Sri Lanka E-2 May 1, 1993
Suriname E-1 February 10, 1963
Suriname E-2 February 10, 1963
Sweden E-1 February 20, 1992
Sweden E-2 February 20, 1992
Switzerland E-1 November 08, 1855
Switzerland E-2 November 08, 1855
Thailand E-1 June 8, 1968
Thailand E-2 June 8, 1968
Togo E-1 February 5, 1967
Togo E-2 February 5, 1967
Trinidad & Tobago E-2 December 26, 1996
Tunisia E-2 February 7, 1993
Turkey E-1 February 15, 1933
Turkey E-2 May 18, 1990
Ukraine E-2 November 16, 1996
United Kingdom E-1 July 03, 1815
United Kingdom E-2 July 03, 1815
Yugoslavia E-1 November 15, 1882
Yugoslavia E-2 November 15, 1882

 

Source: USCIS