Allen and Hodgman | Treaty Investors and Traders1758
Treaty Investors and Traders
- A person may qualify as an “E-2” treaty investor if he or she is coming to the U.S. to develop and direct the operation of a business in which the person has invested (or is about to invest) a substantial amount of capital. There must also be a treaty with the person’s country permitting such entry. The U.S. has such treaties with Canada (NAFTA), and many other countries. Here is the complete list.
- Employees of a treaty investor who share the same nationality as the investor may also be admitted, if they are managers or executives, or if they will engage in duties which require special qualifications that are essential to the efficient operation of the business.
- E visas are usually valid for five years. The investor can be admitted for a period of two years on each entry. The visas can be renewed indefinitely. A spouse and children may be admitted as well. E spouses may apply for work authorization. While the E visa does not lead to a green card or to U.S. citizenship, it has many of the same advantages as a green card.
- The funds to be invested must be committed at the time the visa is issued. The amount varies widely depending on the type of business and the consulate involved. While there is no official minimum, cases involving less than $100,000 U.S. are difficult. The business must be more than marginal – that is, it must be capable of producing more than a modest standard of living for the investor. For instance, if employment opportunities are created for U.S. workers, the business is not marginal.
- A person may qualify as an “E-1” treaty trader if he or she is coming to the United States to carry on substantial trade in goods or services between the United States and the treaty nation of which the person is a citizen. The trade must already exist at the time of application. Over 50% of the international trade must be with the applicant’s nation. For instance, if the treaty trader is from Canada, over 50% of the international trade must be between the U.S. and Canada. If the treaty trader is a business rather than an individual, at least 50% of the business must be owned by citizens of the treaty nation. The place of incorporation doesn’t matter. Employees of treaty traders may also be admitted.
- Unlike other nonimmigrant employment categories such as H, L, O, P and R, the U.S. consulates abroad, rather than USCIS, usually process applications for E status in the first instance. All consulates have strict instructions about the type of information that must be provided, and the exact form in which the information and documents should be submitted. Persons already in the United States may apply for a change of status to E; however, once they leave the United States, they must obtain an E visa to return. All the same information must be submitted regardless of whether the person was granted a change of status. So in most cases it makes sense to just apply for the E visa to begin with.
- Canadian citizens are usually exempt from the visa requirement, but the E category is an exception. Canadian citizens must have an E visa stamp in their passports to be admitted to the US in E status. In Canada, most E visas are processed by the U.S. consulate in Toronto. Vancouver now processes cases filed by residents of British Columbia, Alberta, and the Yukon.
- There is now a new E-3 visa as well. This visa is available only to citizens of Australia. Although related to a free trade treaty, it is not like the E-1 or E-2 visas. It is similar to the H-1B visa. It applies to jobs that require a bachelor’s degree or better as the usual entry level requirement. Applicants may apply directly for a visa at a consulate. There is no petition requirement. E visas are valid for two years at a time, and there is no limit on the number of renewals. Spouses of E-3 visa holders may apply for an EAD. Although there is an annual quota on E-3 visas, the quota has never been reached. So E-3 visas are generally available even when the H-1B quota has been used up.