Treaty Traders and Treaty Investors 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. Australia is one of these countries. 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 for a Treaty Trader (E-1) Visa

The requirements for the Treaty Trader Visa (E-1) are:

  • 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 sizable 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, if an employee 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 requirements for the Treaty Investor Visa (E-2) are:

  • 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 41.51, 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) 41.51. 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.

 

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How to Apply

Step 1
Complete and submit the online Nonimmigrant Visa Electronic Application (DS-160) form.

Step 2

Create a user profile online and pay the Machine Readable Visa (MRV) fee for yourself and any accompanying family members. Follow the step-by-step instructions provided at the U.S. Visa Information Service for Australia website.

Step 3

Submit your supporting documentation to the Consulate which covers your district.

Method of documents submission varies per Consulate. Please refer to the relevant link below for information on the required documentation and how to submit them to the appropriate Consulate.

Within fifteen (15) business days of receipt of your documents, the Consulate will provide you with further instructions on how to schedule your appointment. You will be granted authorization to schedule an appointment only once all your documents are complete.

Step 4

Attend your interview at the U.S. Consulate. 

If your application is approved, your passport with the visa will be returned to you via your self-addressed express post satchel.  Processing time is normally fifteen (15) business days after the interview.  However, processing time may vary and there is no guarantee that your visa will be ready within this time frame.  We urge travelers to apply as early as possible and to not make firm travel plans before the passport with visa has been received.

 

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How To Submit Your Supporting Documents

Method of documents submission varies for each Consulate in Australia. See information below on how to submit documentation to the Consulate which serves your District.

U.S. Consulate General, MELBOURNE (Consular District for: NT, SA, TAS and VIC)
ELECTRONIC-ONLY E1/E2 document submission. Email: MelbourneVisas@state.gov

Format: PDF file, no more than 100 pages in total. Limit 9MB per attachment. Must have tabs dividing the sections clearly. We will NOT accept ZIP files or online shared folders.

The following documents do not count towards the 100-page limit: Forms DS-160, DS-156E, G-28, appointment confirmation, civil documents, copy of passport bio-page, tabs/dividers.

 

U.S. Consulate General, PERTH (Consular District for: WA)
HARD COPY-ONLY E1/E2 document submission. Documents must be mailed/couriered to:

U.S. Consulate Perth
E-Visa Unit
4th Floor
16 St. George’s Terrace
Perth, WA 6000

Note: You must include an Extra Large (5kg) self-addressed express post satchel for the return of the submitted documents.

 

U.S. Consulate General, SYDNEY (Consular District for: ACT, NSW, QLD and Norfolk Island
ELECTRONIC-ONLY E1/E2 document submission. Email: SydneyVisas@state.gov

Format: PDF file, no more than 100 pages in total. Limit 9MB per attachment. Must have tabs dividing the sections clearly. We will NOT accept ZIP files or online shared folders.

The following documents do not count towards the 100-page limit: Forms DS-160, DS-156E, G-28, appointment confirmation, civil documents, copy of passport bio-page, tabs/dividers.

 

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Frequently Asked Questions (FAQ) 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 Australians, the E-visa normally is valid for 24 months for treaty traders and qualifying employees, but can be valid for 48 months for the principal investor and family. On initial entry, immigration officials normally authorize a stay of up to one year in the U.S., with extensions generally available for as long as the E-visa holder and family maintain their E-visa status.

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More Information

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

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