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Treaty Traders/Investors (E-1/E-2) The Treaty Trader (E-1) and Treaty Investor (E-2) categories are intended to promote the admission of individuals, their families, and certain of their employees into the US in order to pursue trade or investment opportunities created by a treaty of Friendship, Commerce and Navigation ("FCN") between the US and the individuals' country of nationality. The US has entered FCN treaties with 43 countries that recognize Treaty Trader opportunities, and with 64 countries that recognize opportunities for Treaty Investors. See State Department List. Significantly, Treaty Traders/Investors may self-petition for admission, and require neither a US sponsor nor a foreign employer seeking to establish a US presence. It is therefore well suited to entrepreneurs from a growing number of countries.
E-1 status requires that the holder will be: (1) solely engaged in carrying out international trade of a substantial nature; (2) on her own behalf or that of her employer; (3) between the US and her country of nationality; and (4) will depart the US at the duration of the authorized stay. The USCIS definition of "trade" is not particularly helpful - the international exchange of the recognized subject a of trade agreements ("trade items") on a contract basis between the US and the treaty country. Examples of "trade items" include:
The trade must be "international", "substantial" and "principally" between the US and the holder's country of nationality. Domestic US transactions do not count toward meeting status requirements. "Substantial trade" requires a sufficient quantity of international transactions to ensure a continuous flow of traded goods and services between the US and the treaty country. USCIS rules apply no minimum gross proceeds of the trade, but note that a holder would probably meet the threshold if business was sufficient to support the treaty trader and her family. The trade activity must also produce a number of transactions rather than be limited to a single contract, regardless of its size or scope. Finally, if more than 50% of the volume of the trade is between the US and the treaty trader's country of nationality, the "principally" requirement is met.
E-2 status requires that the holder has invested (i.e., put at risk) or is actively pursuing investing a substantial amount of capital in a bona fide enterprise in the US, is seeking admission solely for the purpose of developing or directing the enterprise, and intends to leave the US at the end of her status. The law defines "substantial" capital as:
The capital investment must be subject to commercial risk of partial or total loss if the enterprise were to fail, must be derived from the investor's unsecured business capital or from capital secured by the personal assets, and must have been derived lawfully. Although the capital must be invested or be in the process of being invested, final commitment of the investment may be conditioned upon the grant of the E-2 visa to the principal and other necessary parties. The enterprise must be operated as a for-profit commercial business and organized in a manner consistent with state laws applicable to formation and conduct of business entities.
The principal trader/investor may employ fellow nationals in the conduct of the enterprise, who will be eligible for E-1/E-2 status provided they are coming to the US to engage in executive or supervisory activities within the enterprise. If not, they may be employed if they have special qualifications that make their service essential to the efficient operation of the enterprise. All employees' activities must be solely dedicated to the E-1/E-2 enterprise and they must express an intention to depart the US at the end of their authorized term of stay. E1/E-2 status may also extend to employees of US enterprises which are at least 50% owned by E-1/E-2 holders if in the US, or, if outside the US, would be eligible for E-1/E-2 status. In effect, this permits treaty trader investors to joint venture with US or other persons. The level of the principal's investment may, nevertheless, impact whether it can be deemed "substantial".
The spouse and minor children of the trader/investor may accompany or follow to join and receive the same classification as the principal. Their nationality is irrelevant. The spouse may be employed while in the US upon obtaining employment authorization documents, and need not be employed in the same enterprise as his spouse.
Individuals in E-1/E-2 status may petition to adjust to permanent residence status provided they maintain intent to depart the US at the end of their nonimmigrant status.
E-1/E-2 traders and their dependents will be granted an initial stay of two years which may be extended in two year increments for as long as the principal can demonstrate conformance to the conditions of her trader/investor status, was physically present in the US at the time of the filing of the extension application, and has not abandoned the extension request by, e.g. leaving the US without advanced parole. Employees will be granted a two year term, with the expectation that no extension will be granted absent "special circumstances."
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