Nonimmigrant visas are available to nationals of countries with which the United States maintains a treaty of commerce and navigation and who are coming to the United States to:
- carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country (E1), or
- to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital (E2).
While E1 and E2 visa holders are still non-immigrant visa holders, non-immigrant intent may be demonstrated by a simple letter of intent to leave the United States at the termination of their status rather than showing ties to their respective home countries.
E1 Treaty Trader
- national of a treaty country;
- the trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country;
- international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade;
- trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality; (Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other); and
- applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
E2 Treaty Investor
- a real or corporate person, must be a national of a treaty country;
- investment must be substantial and must be sufficient to ensure the successful operation of the enterprise. “Substantial” is defined as an amount which is:
- substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under construction;
- sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
- of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
The investment may not be marginal and must generate significantly more income than just to provide a living to the investor and family. Non-marginality may be demonstrated through evidence of an alternative source of income and/or the investment must have a significant economic impact in the United States;
The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise-referred to as the proportionality test.
In practice the amount of the investment is, understandably, considered. Practice has demonstrated that a minimum threshold of $50,000.00USD is customarily applied to applications submitted at the US consulate in Toronto, Canada. However, consulates in other countries often require a higher investment amount.
If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
Dependants of E1 and E2 visa holders are entitled to derivative dependant status (under the same respective categories). On January 16, 2002, President Bush signed bill H.R. 2277, a bill which permits spouses of treaty traders and investors to obtain employment authorization. While the regulations governing the application procedures have not yet been released, it is anticipated that individuals wishing to take advantage of the new legislation will be required to obtain an employment authorization document (EAD). It is expected that the governing regulations will be released in Spring 2002.