The E-1 and E-2 categories are designated for aliens engaged in
international trade or investment between the United States and the aliens' countries of nationality, provided the U.S.
has an appropriate treaty relationship with the foreign country. Currently the U.S. has such treaties with more than
60 foreign countries.
A treaty country is a foreign
state with which a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent exists with the U.S. A
Treaty Country includes a foreign state that is accorded treaty visa privileges under section 101(a)(15)(E) of the INA by
specific legislation. A listing of countries with whom the U.S. currently has treaties can be downloaded from the State
Department's Foreign Affairs Manual (select 9 FAM 41.51 Exhibit 1 to obtain the correct list).
Note: There is no petitioning process for the E categories.
E nonimmigrant classification is granted through an application process. If outside of the U.S., the alien may apply
for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad. If the alien is inside the U.S.,
the Form I-129 and E supplement is used to apply for a change of status, extension of stay, or change of employment.
See instructions on the form for where to file the application.
For the alien to visit the U.S. temporarily for trading or investing purposes, the requirements outlined at 8 CFR
214.2(e) must be met. Potential applicants are also encouraged to consult Department of State regulations at 22 CFR
41.51.
A brief summary of the requirements
common for both E-1 Treaty Trader's and E-2 Treaty Investor's follows.
Dependents (spouses and unmarried children under 21 years of age) of an E-1 or
E-2 nonimmigrant will be admitted under same classification as the principal. The dependent spouse and child(ren) are
not required to have the same nationality as the principal alien.
Effective January 16, 2002, spouses of E-1 treaty traders or E-2 treaty investors who have been admitted to the United
States under sections 101(a)(15)(E) of the Act are authorized employment without restrictions. Further, an unmarried
dependent son or daughter of an E nonimmigrant employee of the Taiwan Economic Cultural Representative Office (TECRO) is authorized
employment without restriction. In order to obtain work authorization, the E nonimmigrant spouse must submit:
- Form I-765, Application for Employment Authorization, to the
Service Center with jurisdiction over the dependent spouse's place of residence (concurrently filed applications
with Form I-129 petitions for the principals may only be filed at the appropriate service center);
- the appropriate filing fee;
- evidence of the E nonimmigrant principal's current status;
- the dependent spouse's and the principal's Form I-94 Arrival-Departure Records as evidence of admission
or change of status; and
- a copy of the Form I-797 approval
notice for the E nonimmigrant principal's petition, if available.
E-1 Treaty Trader
The E-1 classification is authorized for a national of a country with which the United States has a commercial
treaty, who is coming to the U.S. solely to engage in trade of a substantial nature principally
between the United States and the alien's country of nationality. The trade involved must be international exchange
(successfully negotiated contracts binding on all parties) of items of trade between the U.S. and a treaty country.
Title to the trade item must pass from one treaty party to the other. Items of trade include but are
not limited to goods, services, international banking, insurance, monies, transportation, communications, data processing,
advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-
gathering activities.
If the alien is inside
the U.S., the I-129 is used to apply for a change of status, extension of stay, or change of employment. This classification
does not require a petition for employment if the alien is outside of the U.S. If outside of the U.S., the alien applies
for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad.
Application Document Requirements
The application must be filed with the appropriate fee payment,
and evidence that:
- The applicant is a national
of a country with which the U.S. has the requisite treaty or agreement;
- The activity constitutes trade as defined at 8 CFR 214.2(e)(9);
- The trade is of a substantial nature (i.e. an amount of trade sufficient to ensure a continuous flow
of international trade items between the U.S. and the treaty country);
- The trade conducted by the treaty trader is principally trade between the United States and the treaty
country of which the alien is a national. Trade is deemed to be principally between the U.S. and treaty
country when over 50% of the volume of international trade conducted by the treaty trader is between the U.S. and treaty
country of the treaty trader's nationality;
- If
the applicant is not the principal treaty trader, he or she must be employed in an executive or supervisory capacity,
or possess special qualifications that make the applicant's services essential to the successful and efficient
operation of the enterprise.
- Ordinary skilled or unskilled
workers do not qualify. The applicant intends to depart the U.S. upon the expiration of E-1 status.
(However, an application for initial admission, change of status, or extension of stay in E classification may not be
denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant
visa preference petition.)
- The employee has the same
nationality as the principal alien employer.
- The alien
principal employer is an enterprise or organization at least 50% owned by persons having the nationality of the treaty
country.
E-2 Treaty Investor
The E-2 classification is authorized for a national
of a country with which the United States has a commercial treaty, who is 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.
If the alien is inside the U.S., the I-129 should be used to apply for a change of status, extension of stay, or
change of employment. This category does not require a petition for employment if the alien is outside of the U.S.
In that case, the alien applies for this category on his or her own behalf directly to a U.S. consular office abroad.
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.
Application Document Requirements
The treaty investor application
must be filed with the appropriate fee payment, and evidence that:
- The treaty investor is a national of a country with whom the U.S. has the requisite treaty or agreement;
- The alien (or in the case of an employee of a treaty
investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise.
The alien must demonstrate that he controls the enterprise by showing ownership of at least 50% of the enterprise,
by possessing operational control through a managerial position or other corporate device or by other means;
- The treaty investor has invested in or is actively in the process of investing
in the enterprise;
- The investment is substantial,
i.e. sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise
and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
- The investment enterprise is not a marginal enterprise;
- If the applicant is not the principal treaty investor, 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.
- That the treaty investor intends to depart the U.S. upon the expiration of
E-2 status
