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E-1/E-2 Treaty Trade / Treaty Investor Visa and Family

The E visas are for foreign nationals from countries having a commerce treaty with the U.S.

E-l visa (treaty trader) requires the majority of the company’s trade between the foreign treaty country and the United States.

E-2 visa (treaty investor) requires “substantial” investment in the U.S., depending on the nature of the business.

E visa is also available for managers and executives of these companies.

The E visa is usually granted for a five-year period by the U.S. embassy or consulate in the foreigner’s home country. If the foreigner is in the United States, change of status can be granted for a two-year period. It can be extended indefinitely as long as the U.S. company continues to operate its business. Change of visa status is not possible if the foreigner has entered the country under the visa waiver program.

The E-2 visa for investors requires an active investment of funds in the United States. A qualifying investment must be “active”; that is, it must represent a real operating enterprise productive of some service or commodity. The investment cannot support the investor and his family only. In most cases, it should create job opportunities for U.S. workers. There is no minimum dollar amount necessary in order for the investment to be considered “substantial” or a requisite number of jobs, which must be created by the investment. Examples of unproductive investments are: uncommitted funds in a bank account and purchase of undeveloped land. On the other hand, investments in shopping center, import-export business, and restaurant are considered “substantial.”

Likewise, there is no minimum dollar figure for meeting the requirement of “substantial” trade. This requirement is met by satisfying a “proportionality test” — a comparison between the funds invested and the total cost of establishing such a business. The focus is on the nature of the business in order to determine the total amount of investment needed to establish such a business. For example, the total amount of money needed to start a company engaged in import and export of goods is much less than to open an automobile manufacturing plant or a restaurant.

Since the investment includes the establishment of a new business in the U.S., the funds are considered to be “in the process of investing.” They must be committed to the investment, and the commitment must be real and irrevocable. A mere intent to invest, or possession of uncommitted funds in a bank account, or even prospective investment arrangements entailing no present commitment do not suffice.

Spouses and dependent children under 21 years of age may receive the same E classification. Spouses may apply for an employment authorization document and work without restriction.

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