- carry on substantial trade between the U.S. and their country of citizenship (E-1),
- develop and direct the operations of an enterprise in which they have invested (or are actively in the process of investing) a substantial amount of capital (E-2).
If a company makes the investment, or is engaged in trade, then a managerial, supervisory, or specialized employee may qualify for an E-1 or E-2 visa. To qualify, the employee has the same nationality as the owners of the company. The spouse and children of an E visa applicant may qualify for an E visa as dependents. Upon admission to the U.S. with an E-1 or E-2 dependenet visa, the primary applicant’s spouse also has open-market employment authorization.
Technology in an E-1 Treaty Trader Visa Application
Trade may include “trade in services or trade in technology.” License agreements may provide the foundation for demonstrating substantial trade. Intellectual property developed or created in a treaty country, and used by a U.S. individual or entity pursuant to a license agreement, combined with proof of receipt of payment demonstrates trade. Similarly, contracts (and payment) for services provided to a U.S. entity remotely from a treaty country also demonstrate trade.
Technology in an E-2 Treaty Investor Visa Application
An investment may include patents, trademarks, copyright, and even trade secrets to the extent their value can be demonstrated. Contracts for license, sale, or other transfer of IP rights in exchange for consideration, combined with proof of payment may confirm the value of intellectual property rights. Professional appraisals or estimates of value may also be used as evidence of IP value. The transfer of these rights from an investor to the U.S. enterprise is an investment for purposes of an E-2 visa application.
E-1 and E-2 visa applicants must meet additional requirements beyond mere trade or investment. Both trade and investment must be “substantial.” Applicants for an E-1 treaty trader visa must show that at least 51% of their (or their company’s) international trade is between the U.S. and the treaty country. Applicants for an E-2 treaty investor visa must also show that the U.S. entity is an active, more-than-marginal commercial enterprise. Applicants in either category must state their intent to depart the U.S. upon expiration of their E status in the U.S.
Applicants who qualify for an E-1 or E-2 visa may obtain significant benefits, including a visa valid for up to 5 years, admission to the U.S. for up to 2 years at a time, and unlimited renewals as long as as the applicant and relevant businesses continue to meet the E visa requirements.