The Beauty of Treaty Trader and Treaty Investor Visas

A Treaty Trader (E-1) or Treaty Investor (E-2) visa is available to any national of a country that has a treaty of commerce and navigation with the United States, and seeks to enter the United States solely to:

  • E-1 – 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
  • E-2 – develop and direct the operations 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.

Five features define the beauty of these visas. First, a dependent visa is available for the spouse and children of the visa holder. Second, the spouse of the visa holder is eligible for open-market employment authorization in the United States. Third, executive, supervisory, and essential employees of the visa holder may also be eligible for an E-1 or E-2 visa. Fourth, the visa holder may secure long-term US residence without the permanent tax burden of US citizenship. Lastly, while there is no direct path to citizenship from the E visa category, an E-2 investment may qualify an investor for permanent residence if the investment meets the requirements for the EB-5 immigrant category.

Spouses and Children of the E visa holder

The E visa is available to the principal visa applicant “and the spouse and children of any such alien if accompanying or following to join him.” Importantly, the spouse and children need not hold treaty country nationality to qualify for the dependent visa. Children of the E investor must be unmarried and under the age of 21 to qualify as an E dependent. As E dependents, both the spouse and children may attend school in the United States. Should a child reach the age of 21 while in the US in E dependent status, he or she may be able to qualify for a student visa to continue attending school. Alternatively, in the case of a family business, an adult son or daughter may be able to qualify independently for an E visa as an employee.

Work authorization for the spouse of the E visa holder

When an alien spouse accompanies or follows to join a principal E visa holder, US Citizenship and Immigration Services “shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.” Upon receiving work authorization, the spouse of the visa holder may work anywhere in the US. In some cases, the availability of open-market employment authorization and the absence of a nationality requirement may make the dependent spouse’s visa more highly prized than the principal investor’s. For example, the Indian spouse of a Canadian principal E investor may reap great benefits from an E-2 dependent visa because there is no treaty of commerce and navigation between the US and India.

Employees of the E visa holder

Executive, managerial, essential, and skilled employees of the principal E visa holder may qualify for an E visa, provided they have the same nationality as the principal visa holder. Dependents of employees may qualify for an E dependent visa with the same requirements and benefits mentioned above.

The requirements for an E employee visa are not nearly as restrictive as some other employment-authorized non-immigrant categories. Unlike the H-1B category, there is no requirement to file a labor condition application with the Department of Labor, and no lottery system for petitioning for an employee. Unlike the L-1A and L-1B categories, an employee need not have worked for a foreign parent company for one of the past three years. Indeed, there is no requirement for a foreign parent company at all. In fact, unlike almost every other employment authorized non-immigrant category, USCIS may not be involved in any way. E visa applicants may apply directly to the nearest US consulate that adjudicates E visa applications.

Long term presence in the United States without a permanent tax burden

E visa validity ranges from a single-entry 3-month visa for Iranian nationals up to a multiple-entry 5-year visa for Canadian nationals. Unlike the H and L visa categories, which may be limited to 5 or 7 continuous years before the visa holder must return home for at least two years, the E visa may be renewed for as long as the visa holder meets the requirements. An E visa holder may also “sell his or her residence and move all household effects to the US.” Although an E visa holder may be a “resident for tax purposes” during the years of valid E status, he or she may return home upon retirement without the permanent tax burden that accompanies US citizenship.

Importantly, the duration of valid admission to the United States is not determined by the duration of visa validity, but by the date certain inscribed on an I-94 card issued at the time of admission. An E visa holder may therefore need to exit the United States periodically and then re-apply for admission. Occasionally, US Customs and Border Protection will require that the visa holder continues to meet the visa requirements before once again admitting him or her to the US in E status.

Possibility for permanent residence in the EB-5 category

While the nuances of the EB-5 category are beyond the scope of this article, the basic requirements are quite simple: (1) invest USD $1 million in a new commercial enterprise that (2) creates ten jobs for US workers. If the new commercial enterprise creates ten jobs in a “targeted employment area” then the investment amount is decreased to USD $500,000. Therefore, if an E-2 investment meets these requirements, the visa holder may also be eligible to petition for permanent residence in the EB-5 category. Even if the initial investment doesn’t meet the minimum amount, an E-2 visa holder may invest additional funds over time until reaching the amount required for EB-5 and then petition for permanent residence.

Conclusion

The E visa has many advantages over other work-authorized non-immigrant visas. It gives the visa holder, and dependents the option of long-term US residence with work authorization for the spouse. A large enough investment may pave the way for US permanent residence, but at the same time the investor has the flexibility to return home.

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