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

Treaty Trader and Investor visas are nonimmigrant categories. They do not confer permanent residence in the U.S. nor do they lead to U.S. citizenship, although they permit the applicant and qualified family members to live in the U.S. for an extended period. For permanent residence in the United States, there is a separate program based on investment.

The E nonimmigrant category offers numerous. advantages over other nonimmigrant options including, without limitation: (a) long visa validity periods; (b) no limit on the number of renewals; (c) the ability to engage in self-employment; (d) no requirement that an employee have a previous. employment history with the employing organization; and, (e) the ability to engage in self-employment as entrepreneurs, which is generally not permitted in other nonimmigrant categories.

The E category therefore consists of three subcategories: treaty traders (E-1), treaty investors (E-2), and Australian citizens working in specialty occupations (E-3). However, the E-3 classification is very different from the E-1 and E-2 classifications; it applies only to Australian citizens and more closely resembles the H-1B classification than the E-1 or E-2. As a result, only the E-1 and E-2 classifications will be discussed below.

To qualify as a Treaty Trader (E-1):

• The firm in the U.S. must have the nationality of a treaty country.
• The applicant must be a national of the treaty country.
• The international trade must be "substantial"; there must be a sizable and continuing volume of trade.
• The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50% of the firm's international trade involved must be between the U.S. and the country of the applicant's nationality. Trade means the international exchange of goods, money, services, or technology. Title of items must pass from one party to another.
• The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the operation of the firm.

The term "trade" is defined to include commercial intercourse in goods and trade in services and technology. This includes banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, technology transfer, and other measurable services which can be traded.

E-2 Treaty Investor Visa -- Specific Requirements

• General. The E-2 treaty investor visa is available to nationals of the treaty country who are engaging in investment in the United States. The investor must show that s/he has invested or is actively in the process of investing a substantial amount of capital in a real and operating commercial enterprise, other than a marginal one solely to earn a living for the investor and his/her dependents. The investor must also be in a position to "develop and direct" the enterprise.
• Possession and Control of the Funds Invested. The treaty investor must be in possession of and have control over the capital invested or being invested; the funds must be proven from lawful source.
• Investment Must Be at Risk. The funds must be subject to partial or total loss if business fortunes reverse. The funds must be committed and personally at risk in order to qualify and the business must be an active and substantial investment. The funds must be unsecured. Indebtedness secured by the assets of the business is not considered a qualifying investment.
• Investment Must be Irrevocably Committed. Investment capital that is "in the process of being invested" must be irrevocably committed to the enterprise. However, it is possible to use various legal mechanisms, such as holding funds in escrow, to establish the necessary commitment of funds.
• Other Assets as Part of the Investment The amount spent for the purchase of equipment and for inventory already in the possession of the treaty investor may be counted as part of the qualifying investment. The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise.
• Real and Commercial Enterprise. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. It cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as underdeveloped land or stocks held by an investor without the intent to direct the enterprise. However, an active real estate development would be a qualifying enterprise.
• Investment Must Be Substantial. (a) Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under construction; (b) Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and (c) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
• Investment Must Not Be Marginal. The investment cannot be in marginal enterprise solely for the purpose of earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
• Ability to Develop and Direct the Enterprise. A treaty investor (but not E-2 employees) must be seeking entry solely to develop and direct the treaty business. The ability to develop and direct can be established by owning at least 50% of the treaty business (if the owner retains full rights of control over that portion of the business and has not assigned them to another), by possessing operational control through a managerial position or other corporate device, or by other means. Factors considered include ownership, control of stock by proxy, management position and authority, etc.

Employees of E-1 and E-2 Principal Foreign Nationals

General. An foreign national employee of a treaty trader may be classified E-1 and an foreign national employee of a treaty investor may be classified E-2, if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. Employees of treaty traders or treaty investors seeking E status. must also have the same nationality as their employer and the company must be at least 50% owned by persons having the nationality of the treaty country.

The employee-beneficiary must perform a position of executive or supervisory character or have specialized and not ordinary essential skills. The essential nature of the foreign national's skills to the employing firm is determined by assessing the degree of proven expertise of the foreign national in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary that the special qualifications can command.

There is no requirement that an "essential" employee have any previous. employment with the treaty enterprise. The only time that such previous. employment is a factor is when the needed skills can only be obtained by that employment.

E-3 Visa for Australian Professionals

To be eligible for the E-3 visa, an Australian national must be entering the United States temporarily to work for a U.S. employer in a specialty occupation. The term "specialty occupation" is defined under U.S. law in the context of the H-1B visa program. A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and, at a minimum, the attainment of a bachelor's or higher degree (or its equivalent) in the specialty field. For instance, specialty occupation workers include architects, accountants, engineers, lawyers, physicians, and surgeons (to name a few).

The E-3 visa allows Australian nationals to work for any U.S. employer in a specialty occupation, where this is accompanied by a job offer. For this reason, it is different from the current E-1 and E-2 visas, which require a direct and significant link between the occupation and international trade and investment between the United States and Australia.

The E-3 visa affords entry to the professional worker as well as the worker's spouse and minor children. Significantly, unlike many U.S. non-immigrant visas, the E-3 visa allows spouses to apply for authorization to work in the United States for any U.S. employer.

Australian nationals and their dependents traveling to the United States under E-3 visas will be admitted for up to two years. The E-3 visa may be renewed for two year periods indefinitely.

The E-3 visa has no impact upon the ability of Australians to apply for other visa categories. In addition, current H-1B and E visa holders may apply for an E-3 visa, and E-3 visa holders remain eligible to apply for any other visa.