Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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E-1 Treaty Trader/E-2 Treaty Investor Visas

Q: What are the uses of these visas?

A: The E-1 and the E-2 each have slightly different uses.

The E-1 can be used to bring a foreign national to the U.S. to conduct substantial trade, where more than half of the trade being done in the U.S. is with the home-country of the business. This trade must already be in progress at the time the application for the visa is made - it cannot be merely prospective or hoped-for.

The E-2 may be used to bring a foreign national to the U.S. who is investing substantial personal funds in a business enterprise (or placing personal assets at risk as collateral for the investment capital). While the business need not already be operating, it must be very close to starting operations - further along than just having signed contracts.

Whether using the E-1 or the E-2, the foreign national must occupy a high-level office within a trading company (top-level executive, top-level manager, or someone with skills essential to the operation of the company).

Both the E-1 and the E-2 require that the U.S. has a treaty with the foreign national's home country for that specific visa (some countries have an agreement in place with the U.S. for E-1 treaty traders only, some for E-2 treaty investors only, some for both, some for neither).

Q: What are the advantages and disadvantages of the E-1 and E-2 visas?

A: There are several of each. A major advantage of the E category is that they may be applied for directly at the U.S. embassy or consulate overseas (discussed below), eliminating an often lengthy U.S. Citizenship and Immigration Services application process. Also, the initial E visa may be granted for up to five years, although frequently less time will be granted if the business is not well-established.

On the negative side, there is the requirement that the foreign national be occupying a high-level position and that substantial trade or substantial investment be involved - these restrictions are sometimes prohibitive, and often make an L-1 non-immigrant visa preferable where an overseas company is already in operation and the foreign national has worked there for a long enough period of time.

Obviously, a treaty needs to be in place between the country of which the individual is a national and the U.S. for the E visa to be viable - and the lack of such a treaty can be a fatal disadvantage to a case which would otherwise be a perfectly good E-1 or E-2 case.

Q: What is the procedure for obtaining an E category visa?

A: If the foreign national is already in the U.S., a change of status to E-1 or E-2 may be applied for through the Service Center, as with any other non-immigrant visa.

However, the process for foreign nationals who are overseas is different and avoids the step of first going through the Service Center: once the application package is assembled it is presented directly at the embassy or consulate for evaluation without first being sent to a regional USCIS Service Center for approval. If approved after review and interview, the passport stamp is issued by the consulate, allowing the foreign national to immediately depart for the U.S.

The consular process is often preferable as well because it is not necessarily avoided simply by processing through USCIS - if the E-2 will be traveling at all, they will eventually need to process through the consulate, obtaining the visa stamp.

Q: Can family members accompany a foreign national to the U.S.?

A: Yes. There is no separate derivative visa category for family members of E-1 treaty traders and E-2 treaty investors, however immediate family members can be admitted on their own E-1 and E-2 visas respectively as long as the principal applicant is admitted in that category.

Q: Great that family can accompany the primary E-1/E-2 to the US, but can they work while there?

A:A spouse (but not children) may apply for employment authorization through USCIS once in their respective E status, permitting them to accept employment. But, they cannot work with first obtaining this employment authorization - which may take three to four months from the time they apply.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.