The nonimmigrant visa classification, which most closely approximates the status of an immigrant, is that of Treaty Trader (E-1) or Treaty Investor (E-2).

Treaty Requirement: E visa classification is only available to nationals of a country, which has entered into an appropriate commercial agreement with the United States. The U.S. Department of State recognizes agreements with some countries as authorizing the issuance of both Treaty Trader and Treaty Investor (E-1 & E-2) visas to their nationals, while agreements with certain countries authorize issuance in only one of these classifications. Information confirming which countries have treaties both E-1 and E-2 status, and which countries have treaties limited to E-1 or E-2 classification is available, on a country by country basis, on the State Department’s Visa Reciprocity Table available online at http://travel.state.gov/visa/reciprocity/index.htm

E-1 classification is available to a national of a country with which the United States has a commercial treaty, who is coming to the U.S. solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which the applicant is a national. Trade in services includes, but is not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer. The word “substantial” in describing trade is not intended to exclude trade conducted on a modest scale or applicants who are employed by small companies. Rather, this term refers to the volume or number of transactions and not necessarily to their monetary value. Thus, a pattern of many transactions, each small in value, can suffice if substantial in the aggregate. More than half of the total volume of international trade conducted by the treaty trader must flow between the United States and the treaty country

E-2 classification is available to 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 the applicant has invested, or is actively involved in the process of investing, a substantial amount of capital. 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. In the E-2 visa context, the word “substantial” as used to describe the required investment is meant to require that the amount invested to ensure the investor’s financial commitment to the successful operation of the enterprise and large enough to support the likelihood that the investor will successfully direct and develop the enterprise. There is no minimum dollar figure established for meeting the requirement of “substantial”’ investment. The substantiality of an investment is determined by the application of a “proportionality test.” In businesses requiring smaller amounts of total investment, the treaty investor must contribute a very high percentage of the total investment, whereas in businesses of larger total investment, the percentage of the treaty investor may be much less. A prospective investor must not be investing in a marginal enterprise solely for the purpose of earning a living. This means that an applicant is not entitled to E-2 classification if the investment, even if substantial, will return only enough income to provide a living for the applicant and family

Principles Common to E-1 and E-2 Classification: The E visa category does not require the filing of a preliminary petition with USCIS, and if the alien is outside the U.S. he or she applies directly for a visa at a U.S. consular office abroad. If the applicant is not the principal investor or owner of the treaty investment or treaty trader company, 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. E-1 or E-2 dependent status is available to the spouse and unmarried minor (under 21) children who will accompany the principal E visa applicant in the U.S.

E-1or E-2 nonimmigrant status only authorizes a person to remain in the U.S. in connection with the management of the business that is the basis of his or her visa application. An E-2 nonimmigrant is not authorized to work in the U.S. for another employer. By application to U.S. Citizenship and Immigration Services, however, the accompanying spouse, but not the minor children of the E principal may obtain authorization to accept employment in the United States.

As nonimmigrants, both treaty traders and treaty investors must intend to depart when their status terminates. Unlike most other nonimmigrants, however, including those seeking “H” or “L” classifications, treaty aliens need not show that they are coming to the United States for a specific, limited period of time. Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise. Many traders and investors properly remain in “E” status for years or even decades.