TREATY INVESTOR VISAS (E VISAS) 

January 2009

This memorandum is not intended to provide legal advice on individual cases, each of which presents specific problems. Rather, it is intended as an overview of the general process, and the steps necessary to be classified as a treaty investor or trader. Due to the complexities of the immigration process, it is recommended that you seek specific advice from an experienced immigration attorney.

-Palma Yanni, Esquire


INA 101(a)(15)(E) provides for admission as a nonimmigrant of:

an alien entitled to enter the U.S. under and in pursuance of the provisions of a treaty of commerce and navigation between the U.S. and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him: (i) 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 he is a national; or (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is a national; or (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.

Nonimmigrants including spouses, children and employees, who are admitted under clause (i) of that provision are classified as E-1 treaty traders; those admitted under clause (ii) are E-2 treaty investors.

To qualify for an E-2 treaty investor visa, an alien must meet the following basic requirements:

(1) be a national of a foreign state with which the U.S. has a treaty allowing for comparable status for U.S. nationals;

(2) be coming to the U.S. solely to develop and direct an enterprise;

(3) in which the foreign national has invested or is investing a substantial amount of capital.

Each element must be considered. The consular officer or INS examiner must be satisfied about each requirement to assure receipt of a visa or change of status to E-2.

Currently nationals of the following countries may enter the U.S. as E-1 and E-2 treaty investors:

ARGENTINA * AUSTRALIA * AUSTRIA * BELGIUM * BOLIVIA *BOSNIA-HERZEGOVINA * CANADA * CHILE * CHINA(TAIWAN) * COLOMBIA * COSTA RICA* CROATIA * ESTONIA * ETHIOPIA * FINLAND * FRANCE * GERMANY * HONDURAS * IRAN * IRELAND * ITALY * JAPAN * JORDAN * LATVIA *LIBERIA * LUXEMBOURG *MACEDONIA * MEXICO * NETHERLANDS * NORWAY * OMAN * PAKISTAN * PARAGUAY * PHILIPPINES * POLAND * SINGAPORE * SLOVINIA * SOUTH KOREA * SPAIN * SURINAME * SWEDEN * SWITZERLAND * THAILAND * TOGO * TURKEY * UNITED KINGDOM * YUGOSLAVIA

Currently nationals of the following countries may enter the U.S. only as E-1 treaty investors:

BRUNEI * DENMARK * GREECE * ISRAEL

Currently nationals of the following countries may enter the U.S. only as E-2 treaty investors:

ALBANIA * ARMENIA * AZERBAIJAN * BAHRAIN * BANGLADESH * BULGARIA * CAMEROON * CONGO (BRAZZAVILLE AND KINSHASA) * CZECH REPUBLIC * ECUADOR * EGYPT * GEORGIA * GRENADA * JAMAICA * KAZAKHSTAN * KYRGYZSTAN * MOLDOVA * MONGOLIA * MOROCCO * PANAMA * ROMANIA * SENEGAL* SLOVAK REPUBLIC * SRI LANKA * TRINIDAD & TOBAGO * TUNISIA * UKRAINE

Applications for a Treaty Investor status should include:

(1) The applicant's passport demonstrating that he or she is a citizen of a qualifying country. The passport should be valid for six months beyond the intended stay.

(2) Evidence of the existence of the investment enterprise, such as Articles of Incorporation and Bylaws, or Partnership Agreement, Joint Venture agreement, business trust documents, or other documents showing the existence and proper registration of the business.

(3) Evidence that the enterprise is licensed to do business in the locality where it will conduct business; for example, local, municipal, and/or state business licenses. Mere incorporation or formal agreement to do business does not indicate authority to do business in the U.S.--certificates of occupancy or similar registrations are required for most retail establishments; health department approvals are required for restaurants or other establishments where food is handled. If the enterprise premises are not yet constructed, building permits would be appropriate.

(4) Documentation verifying that the applicant has the capability to develop and direct the enterprise.

(5) Documents demonstrating the nature of the business and its financial condition including:

(a) If a new enterprise, a comprehensive business plan including market surveys, photographs of the premises or drawings of the planned facility, leases or real estate purchase agreements for the business premises, escrow agreements, and bank statements.

(b) If a purchase of an existing business, a buy-sell agreement and comprehensive financial statement, business tax returns for the past few years. a lease or lease assumption agreement for the business premises, inventory records, employment records such as Forms 941 or W-3 reports (the employer's consolidated report of employee earnings), and bank statements.

(6) Evidence of other personal assets of the investor. Deeds to property; proof of ownership of other businesses or investments such as shares of stock; statements of bank or other depository accounts; or a personal financial statement prepared by a qualified accountant.

 

TREATY INVESTOR EMPLOYEES

Not only the principal foreign investor, but also employees of that investor, and employees of an investment enterprise that holds the nationality of a treaty country, may come to the U.S. in E-2 status.

Nationality of the Enterprise

An alien seeking an E-2 visa as an employee of an E-2 visa holder must establish that the employer is either a foreign person having the nationality of the treaty country or is an organization at least 50% owned by a person or persons having the nationality of the treaty country. If the employer is a corporation or other business organization, the employee must have the same nationality as those who control his employer. For purposes of E-2 status, a company's nationality depends on the company's ownership, not on its place of incorporation or the location of business activities. Nationality of the enterprise is determined by the nationality of the individuals or corporate "persons" that own 50% of the stock; or (if not incorporated) the nationality of those owning the principal amount of the business.

Executive/Supervisory Employees

Only employees of treaty investors whose duties are executive or supervisory, or who have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise, may qualify for E-2 employee status.

Essential Skills Employees

Investor-employee status may also be accorded to persons who are not engaged in executive/supervisor positions, provided the applicant possesses skills essential to the firm's operations in the U.S. The State Department has provided a special "TDY" (temporary duty) designation for "essential skills" employees, signifying a limited stay in the U.S. to train other workers during the start-up phase of a business enterprise.

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