Treaty Trader and Treaty Investor Visa Visas

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Overview

Treaty Trader (E-1) and Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. For a list of all treaty countries, click here.

To qualify for Treaty Trader (E-1) and Treaty Investor (E-2) visas applicants must be coming to the United States either to engage in substantial trade, including trade in service or technology, in qualifying activities, which is principally between the United States and the treaty country, or to develop and direct the operation of an enterprise in which the applicant has invested a substantial amount of capital. Holders of E visas must intend to depart the United States upon the termination of their E status.

The spouse and unmarried children (under 21 years of age) of treaty traders, treaty investors, or employees of enterprises may receive dependent E visas in order to accompany or follow to join their spouse or parent. They are not required to have the same nationality as the principal applicant to obtain an E visa.

E visas permit the investor/trader and his or her family to live in the United States during the period of stay authorized by the Department of Homeland Security (DHS). E visas are nonimmigrant visas; consequently, visa holders are allowed to live in the United States only so long as the conditions under which the visa was granted remain valid. Dependents are not authorized to work in the U.S. unless they receive explicit authorization to do so from DHS-USCIS in the United States. Dependents of treaty traders/investors may apply for work authorization after their arrival in the United States.

Qualifications

Qualifications for a Treaty Trader (E-1) Visa:

  • The applicant must be a citizen of a treaty country;
  • The trading firm for which the applicant is coming to the United States must have the nationality of the treaty country, meaning persons with the treaty country’s nationality must own at least 50 percent of the enterprise;
  • The international trade must be "substantial". There must be a sizeable and continuing volume of trade (trade means the international exchange of goods, services, and technology). Title of the trade items must pass from one party to the other;
  • The trade of the U.S. enterprise must be principally between the U.S. and the treaty country. More than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality;
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skill essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify. Please note that a detailed explanation of why the applicant's skills are essential for the enterprise in the U.S. may be required;
  • The applicant must intend to depart the U.S. when his/her E-1 status ends.

Qualifications for a Treaty Investor (E-2) Visa:

  • The investor, either a person, partnership or a corporate entity, must have the citizenship of the treaty country. If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality;
  • The investment must be substantial and the funds have to be "irrevocably" committed. The investment must be sufficient to ensure the successful operation of the enterprise;
  • The investment must be in a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or mere ownership of undeveloped land are not considered an investment;
  • The investment may not be marginal. Based on 9 FAM 402.9, the enterprise must either show a financial return that significantly exceeds what is necessary to support a living for the investor or else the enterprise must have the capacity, present or future, to make a significant economic contribution;
  • The investor must have control of the funds, and the investment must be at risk in a commercial sense. If the funds are not subject to partial or total loss if business fortunes reverse, then the investment is not an investment in the sense intended by the Immigration and Nationality Act (INA) 101(a)(15)(E) and in 9 Foreign Affairs Manual (FAM)402.9. Loans secured with the assets of the investment enterprise do not qualify;
  • The investor must be coming to the United States to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled or unskilled workers do not qualify. Please note that a detailed explanation of why the applicant's skills are essential for the enterprise in the U.S. or why the applicant possesses qualifying “executive or supervisory: experience may be required;
  • The applicant must intend to depart the U.S. when his/her E-2 status ends.

Frequently Asked Questions About E-1 and E-2 Visas

Q: Must the trading company exist and/or the investment have been made before the visa can be issued?

A: Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, contingent only upon the issuance of the visa. Investment funds may come from any country, including the United States, as long as they are controlled by the investor applicant.

Q: What is substantial trade?

A: Substantial trade contemplates a continuous flow of trade items between the U.S. and the treaty country. This means numerous transactions rather than a single transaction regardless of monetary value.

Q: What is a substantial amount of capital?

A: There is no fixed amount which is considered “substantial.” A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test. The proportionality test compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.

Such comparison constitutes the percentage of the treaty applicant’s investment in the enterprise. That percentage must compare favorably in the fashion of an inverted sliding scale starting with a high percentage of investment for a lower cost enterprise. The percentage of investment decreases at a gradual rate as the cost of the business increases. An amount of capital invested in an enterprise is merely presumed to be substantial when it meets or exceeds the percentage figures given in the following examples (amounts shown are in U.S. dollars):

  • 75% investment in an enterprise costing no more than $500,000 (if the cost of the enterprise is substantially lower than $500,000, 85-90%, or even 100% investment may be required).
  • 50% investment in an enterprise costing more than $500,000 but no more than $3,000,000.
  • 30% investment in any enterprise costing more than $3,000,000.
  • A multi-million dollar investment by a large foreign corporation is normally considered substantial, regardless of the examples given above.

The investment must do more than merely yield a return capable of supporting the investor and family. A marginal enterprise is an enterprise which does not have the capacity to generate significantly more than enough income to provide a living for the investor, family and other alien employees.

Q: Are joint ventures permitted?

A: Yes, provided that the business or individual investor applying for the visa is in a position to “develop and direct” the enterprise. The applicant is in such a position by controlling the enterprise through ownership of at least 50% of the business, possessing operational control through a marginal position or other corporate device, or by other means showing the applicant controls the enterprise.

Q: How long may the Treaty Trader or Investor stay in the U.S.?

A: The applicant must have the intention of departing the U.S. upon conclusion of the commercial activities. Nevertheless, holders of E-visas may reside in the U.S. as long as they continue to meet E-visa qualifications.

“Essential employees” may remain only as long as their skills are required to operate the business, and only as long as the owner can show either that U.S. workers cannot be trained to duplicate the skills or that the owner is making reasonable efforts to train U.S. workers as replacements.

For New Zealand, E-visas are valid for multiple entries to the United States for 60 months for treaty traders and qualifying employees. Immigration officials at the port of entry will make a final determination regarding the length of your stay in the United States, with extensions generally available for as long as the E-visa holder and family maintain their E-visa status.

Visit the Department of State's website for more information about treaty traders and treaty investors visas.

How to Apply for a Visa

The U.S. Consulate in Auckland will only review the documents of applicants who have registered in our appointment system and paid the proper visa fee. Please click here, to register in our appointment system. For more information on visa fees, click here.

How to prepare your application:

Step 1

Complete the Nonimmigrant Visa Electronic Application (DS-160) form.

Step 2

Pay the visa application fee.

Step 3

Create an online profile on this link, if you have not already done so. You will need three pieces of information to complete this step:

  • Your passport number.
  • The “unique receipt number” appearing on your New Zealand Post receipt, or the “receipt number” if you have paid by credit card. If you need help finding either of these numbers, please contact the call centre for assistance on this link).
  • The ten (10) digit barcode number from your DS-160 confirmation page.
Step 4

After you have paid and entered your receipt number at Step 8 of the online application process, click the “Continue” button. You will be routed to the “Schedule Consular Appointment” page with notification annotated on this page that your request for an appointment has been received and will be reviewed, and that you will receive an email once your request for an appointment has been approved.

Step 5

Please send application and supporting documents in hard copy to the U.S. Consulate within 3 days of paying for your U.S. visa processing fee. The Consulate will contact you when your application is ready for interview. DO NOT ATTEMPT TO CONTACT THE CONSULATE TO SCHEDULE ANY APPOINTMENT UNTIL YOU HAVE RECEIVED AN EMAIL NOTIFICATION FROM THE CONSULATE INFORMING YOU THAT YOUR REQUEST FOR AN APPOINTMENT HAS BEEN APPROVED.

Please bring with you to the interview a copy of your DS-160 confirmation page, one recent photograph, your current and all old passports in your possession, the original visa fee payment receipt if you have paid at Kiwibank located at a New Zealand Post shop, and the Appointment Confirmation letter.

All passports will be returned by courier service to an address located within New Zealand after the visa interview. The courier vendor is Courier Post. You will be notified via email and SMS when your passport/document is ready for pickup. Please do not schedule your flight or accommodation until the visa has been approved and is in your possession.

For visa application by children less than 14 years old, please see the information available here.

Application Documents for Treaty Trader (E) Visa:

Submitted applications must be clearly divided into sections separated by lettered or numbered tabs, and secured in a 3-ring binder or with 2-hole prong fasteners. (Please note that applications submitted in sheet protectors will not be accepted.) A copy of your appointment letter must be included in your application packet. A cover letter from the applicant’s representative may also be included outside the binder. Applications that do not follow these guidelines will be returned unread, which may delay your visa application process. Please do NOT include additional documents that are not specifically requested below.

Tab A or 1

A printed confirmation page from the Online Nonimmigrant Visa Application DS-160, one 2” x 2” (5x5 cm) photo, full front view on plain white background, taken within the last six months

Tab B or 2 One copy of Form DS-156E. Contact information must include an e-mail address and local New Zealand phone number. Please ensure that the form is filled out in its entirety.
Tab C or 3

A photocopy of the biographical page of the passport of each applicant (page with the name and photo). Please include copies of all prior US visas and approved change of status notices (Form I-797). Also include a photocopy of the Entry/Exit immigration stamp in passport from last trip to the U.S. Please bring your original passport and any prior ones containing U.S. visas with you at the time of the interview.

Tab D or 4 Cover letter describing company, position, and beneficiary. This letter must address all requirements for E visa eligibility as defined by the Foreign Affairs Manual and U.S. law. It should address the following in detail:
  • that the trade is substantial, as defined in 9 FAM 402.9-5(C) (to be documented in Tab G/7); and
  • that the trade is occurring principally between the United States and the treaty country, 9 FAM 402.9-5(D)  (to be documented in Tab H/8); and
  • that the applicant, if an employee, will fill an executive/supervisory role or possesses skills essential to the firm’s operations, 9 FAM 402.9-7(B) and (C) (to be documented in Tab I/9).

If the company has previously qualified for E visa status, please include the date of the initial qualification. Also, please include a paragraph concerning the applicant’s unequivocal intent to depart U.S. when E status ends.

Tab E or 5

Proof of treaty country ownership (at least 50%) and controlling interest in the enterprise. Examples for Corporations include: Articles of Incorporation, stock certificates and ledgers, Secretary of State certificates, other documents of this nature.

Examples for Private Companies include: Articles of Organization/Formation, State Registration of Ownership, other documents of this nature.

Tab F or 6

Evidence of substantial trade as defined by 9 FAM 402.9-5(C). This should include:

  1.  All Enterprises
    a. IRS Form 941 – Pages 1-2 for the four most recent fiscal quarters
    b. Enterprise with 10 employees or less
         i. State Wage Record (ex. DE-6 or DE-9C) with names of all employees and quarterly salaries for the four most recent fiscal quarters
         ii. USCIS Form I-9 – Pages 7-8 for each employee
  2. If Enterprise (including previous owners) has existed less than one year –
    a. Sales invoices
    b. Sales contracts
    c. Bills of lading
  3. If Enterprise (including previous owners) has existed more than one year – provide the three most recent fiscal years (if applicable)
    a. Corporation - IRS Form 1120 – Pages 1-2
    b. Foreign Corporation - IRS Form 1120-F – Pages 1-3
    c. LLC – IRS Form 1065 – Pages 1-5
    d. Private Ownership - IRS Form 1040 + Schedule C – Pages 1-2 of each
Tab G or 7

Evidence that trade is principally between the US and the treaty country as defined by 9 FAM 402.9-5(D). US customs invoices and/or purchase receipts may be submitted here, as well as a letter from a company officer certifying the following:

  1. Percentage breakdown of company trade between
    a. Parent company / U.S. company
    b. Parent company / other countries
    c. U.S. company / other countries
  2.  Include both imports and exports

Additional explanatory remarks and a sample Volume of Trade Report can be found here.

Tab H or 8

Applicant’s resumé

Organization Chart 

  1. Showing position in company
  2. Showing direct subordinates of PA
  3. Identifying any person being replaced

IRS Form 1040 – Pages 1-2 – provide the three most recent fiscal years (if applicable - only for Applicants who have previously worked in the U.S.)

If the applicant is applying as an employee with Executive and Supervisory Responsibility, evidence that he or she meets the criteria outlined in 9 FAM 402.9-7(B).

If the applicant is applying an essential employee, evidence that employee has essential skills that the enterprise urgently needs, as well as the projected duration of this essentiality. You should include relevant diplomas, job training certificates or letters from previous employers in this section. You may also wish to explain why the enterprise was unable to find a qualified US citizen or Legal Permanent Resident to fill the position. You should address the criteria contained in 9 FAM 402.9-7(C).

Tab I or 9 G-28I or G-28 "Notice of Entry of Appearance as Attorney or Representative" (as appropriate), including contact e-mail address and phone number.
Processing Time

Processing time varies with the complexity of the case and our overall workload. Generally, it takes ten (10) business days for an officer to review your case, but during peak times, it can take as long as three weeks. Applicants should not make unchangeable travel or business plans until their visas have been issued. Please do not inquire as to the status of the case within ten (10) business days of our receipt of your application package. Please make flexible travel plans.

Dependents

Spouses and/or unmarried children under the age of 21 who wish to accompany or join the principal visa holder in the United States for the duration of his/her stay require a derivative E visa.

Family members who do not intend to reside in the United States with the principal visa holder, but wish to visit for vacations only, may be eligible to apply for visitor (B-2) visas.

Spouses and dependents may not work in the United States on a derivative E visa. If your spouse/child seeks employment, the spouse must obtain the explicit authorization to do so from DHS-USCIS in the United States. This authorization must be applied for after their arrival in the United States

Supporting Documents for Dependents

It is preferred that families apply for their visas at the same time, but if the spouse and/or child must apply separately at a later time, they should follow the investor visa application process and submit the following required documents by courier service:

  • A confirmation page of DS-160
  • One 5x5 cm photo on plain white background, taken within the last six months
  • A copy of appointment confirmation letter
  • A copy of Form DS-156E submitted by the principal applicant at the time of his/her visa application
  • Proof of the relationship (e.g., family relationship, marriage, birth and adoption certificates)
  • A copy of the principal applicant’s E visa and/or I-797 approval notice
  • A dependent’s copy of I-797 if it is applicable.
Note: A business day is defined as a day between Monday and Friday (excluding U.S. and New Zealand public holidays observed in Auckland).