Treaty Investors (E-2) & Traders (E-1)
Page presented by: Robert Baizer, Attorney, with
offices in Oakland & Pacific Grove, CA, a Certified Immigration Law Specialist, handling employment based immigration cases for over 20 years.|
Tel: (510) 663-3444 |
email: baizer@visalawyer.net
Two types of temporary business visas available to aliens who are citizens of countries with treaties of investment & trade with the U.S. are the treaty investor (E-2) and treaty trader (E-1) visas. These visas allow the individuals to be employed in the U.S. through the qualifying business that has sponsored their entry. The individuals usually are granted one or two years of stay, but that period can be extended for as long as they continue in the qualifying employment. The spouses and children under 21 can also stay in the U.S. with the qualifying individual, in the same status. Under a recent change in the law, the dependent spouse of an E visa holder may apply for work authorization.
NATIONALITYBoth the individual and the company ownership must have the qualifying nationality. For example, there is an applicable treaty with Japan. A Japanese employee might qualify if working for a company with at least 50% Japanese ownership, but would not qualify for an E visa if the employer were a U.S. owned company. Also, the nationality of the individual and the employer must be the same. A Korean individual could qualify through a Korean owned company, but not through a Japanese owned company.
POSITION
The individual should be either a company owner, executive, or a person with special qualifications that make his or her services essential to the efficient operation of the enterprise.
PERMANENT RESIDENCE FOR EXECUTIVE TRANSFEREES
There is an exception to the usual labor certification requirement for permanent residence applications for persons who are executive intracompany transferees. These persons might have E, L, H or even no other temporary visas. They can qualify if they can show that they have worked in an executive position outside the U.S. for over one year, and that they have been or will be transferred to an executive position in an affiliated company in the U.S. If the person qualifies, then spouses and minor children can also be included in the application for permanent residence. This avenue of immigration can be especially helpful to executives transferred to the U.S. whose children, after some years here, wish to stay on in the U.S. even if the executive might eventually be transferred back abroad. In such cases, it is important to apply early enough - such as a year in advance - so that the children do not lose their eligibility by reaching age 21 prior to completion of the application.
BUSINESS OWNERS
The law requires that the business involve either a "substantial" investment (E-2) or involve a "substantial" amount of trade (E-1). These terms are vague, but are usually interpreted to require a fairly large amount of money, depending in part on the type of business. An investment or trade amount that is only enough to keep the business owner or his family employed, and no others, would probably not be found to be "substantial." Investors should be wary of putting their life's savings into a business just for the sake of the visa. The visa application may not be successful. It would be best to study the investment with an immigration attorney prior to investing. Even if the visa application is successful, the visa is temporary, extendable only as long as needed to run the business. If the business fails, the visa could no longer be extended.Investment in a business and qualification for the E visa is not necessarily related to qualifying for securing permanent residence through the business. To qualify for permanent residence, the investor would either have to qualify as an executive transferee, described above, or else would have to qualify in the category for the "employment creation aliens, " those who invest at least one million dollars in a business that creates ten new jobs.