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E-1/E-2

(Treaty Trader/Treaty Investor) Status

E-2 (TREATY INVESTOR) VISA PROCESS AND PROCEDURE

The E-2 (Treaty Investor) visa, made possible by a treaty between various countries and the United States, allows one to live in the United States for many years, but not permanently. The most essential criteria are that there must be:

  1. A treaty of commerce and navigation between the country of the foreign national’s citizenship and the United States;
  2. Majority ownership in an investment by a national or citizen of the treaty country;
  3. Citizenship in the treaty country by the person seeking admission under treaty investor status.

There are also the following additional requirements:

  1. There must be an investment in the U.S. in which the investor has made a commitment of funds that represent an actual, active investment (i.e., an operating enterprise producing some service or commodity).
  2. The investment must be substantial.  While this term is not defined in absolute dollar amounts, it must show that the investor’s own resources are at risk, and that the investment represents a significant part of the value of the enterprise, sufficient to capitalize an enterprise of the type contemplated.  If one is going to start a bank, millions of dollars would be needed; if one is going to buy an ice cream parlor, $100,000 or less might suffice.
  3. The investment cannot be marginal in nature (one which will support only the investor and his/her family), but should create job opportunities for U.S. workers.  There is no written requirement that an investment create employment for U.S. workers.  Nonetheless, the business enterprise should require employees beyond the investor in order to operate and should be conducted on a scale which will assure this employment.  Also, reliable income projections should be made that will show sufficient funds generated beyond a living wage for the investor, so that money would be available to pay salaries to U.S. workers.
  4. The person for whom the treaty investor status is sought must fill a key role within the company (i.e., one of the persons who has developed and directed the investment), and have a controlling interest in the company.

Generally, much of the supporting documentation needed for the E-2 nonimmigrant status is included in a letter signed by the company. This letter is drafted by our office according to the specifics of the individual case, and covers both the E-2 essentials as well as the discretionary information which strengthens the application. Information on the size and amount of the investment, the prospects for the employment of U.S. workers, the duties to be performed by the individual for whom the visa is sought, and the qualifications of that individual to fulfill those duties are usually included in this letter.

Additional documentation needed for the E-2 application usually covers the following points:

  1. Majority ownership of the company seeking treaty status. This proof usually would be certification of a corporate resolution submitted to show the identity and percentage of ownership of the corporation by the shareholders.  A statement from the company’s accounting firm may also be submitted showing ownership.
  2. The type of business in which the company is engaged.  The company’s Articles of Incorporation would show this, along with brochures, promotional materials, or copies of any licenses required to conduct the business.
  3. The amount of the investment, including the source of the money.  This can be evidenced by loan agreements or bank statements showing transfers of funds from foreign banks to U.S. banks.  Funds must be placed into a corporate account in order to be attributable to the U.S. investment.
  4.  The type of financial transactions that make up the investment.  This documentation includes receipts for purchases of equipment, real property, start-up inventory, costs incurred in establishing the business and capital improvements, and statements demonstrating the valuation of goods or equipment transferred to the U.S.
  5. Prospects for the investment.  Copies of sales contracts already signed and/or letters showing on-going negotiations should be submitted.  In the absence of this hard evidence, a market research study by a professional consulting firm may be convincing on the issue of the company’s viability.
  6. Duties to be filled by the foreign national.  The employer’s affirmations in the cover letter are generally sufficient.  However, corporate personnel materials such as personnel charts or job descriptions which may be available to substantiate the affirmations may be submitted.
  7. The foreign national’s qualifications to fulfill the duties.  Should the employer’s affirmations in the cover letter cite specific experience or educational background, reference letters (usually from prior employment) should be made available for submission.
  8. A legal brief tying the documents to the requirements set by statute and State Department regulations.

While the general outline for an E-2 application remains constant, there are always variations in the specifics. We should discuss the E-2 option in more detail if it appears to be a reasonable choice for you. The E-2 visa does allow a foreign national to enter the U.S. for up to a year at a time, to “work” at his/her owned investments, and can be renewed annually for an indefinite period of time.

If you would like further information about specific case scenarios or situations, please call our office or email us at [email protected] to speak to one of experienced immigration attorneys.

SUPPORT DOCUMENTATION FOR E VISA APPLICATION

  1. CORPORATE:
    1. Certificate and Articles of Incorporation of U.S. company;
    2. Stock certificates for all issued and outstanding shares of U.S. company;
    3. Organization chart of world-wide corporate organization, showing each company’s name, country of location and ownership, with cover letter from overall parent company (see attached sample);
    4. Current annual report or audited financial statement for U.S. company (or, if a new company, a formal business plan);
    5. Current annual report or audited financial statement for foreign company;
    6. Lease or deed for business premises of U.S. company;
    7. Any available promotional pamphlets and brochures which describe the U.S. and foreign companies and their various products, services, etc.; and
    8. Evidence that the investor has made an commitment of funds to the U.S., including bank statements, contracts for purchase of goods and/or services, pictures of new enterprise, etc.
  2. INDIVIDUAL (Foreign national seeking E- 2 visa status):
    1. Completed Immigration Questionnaire and E-1/E- 2 Addendum (KC forms);
    2. Photocopies of individual’s passport and those of his immediate family members who will accompany him to the United States ;
    3. If individual is himself an investor in the U.S. enterprise, photocopies of personal financial statement, foreign income tax return, etc.;
    4. Individual’s resume, curriculum vitae, etc.;
    5. Photocopies of individual’s university or trade school diplomas and certificates, and course transcripts, if available;
    6. Photocopies of individual’s professional licenses, professional society membership certificates orcards, etc.; and
    7. Detailed description of individual’s proposed job duties and responsibilities in the United States.

Please provide English translations for any foreign language documents

If you would like further information about specific case scenarios or situations, please call our office or email us at [email protected] to speak to one of experienced immigration attorneys.

QUESTIONNAIRE FOR PROSPECTIVE TREATY TRADER/INVESTOR E-2

  1. NATURE OF THE ENTERPRISE
    1. Name of the corporation, partnership, limited partnership, proprietorship, or other form of business organization in the United States (the “enterprise”):
    2. Address of the Enterprise:
    3. Date and place of incorporation, registration, licensing, or other establishment of the enterprise in the United States:
      (Please attach a list of all States of the United States in which the Enterprise is registered to do business.)
    4. Describe the trade or business to be conducted by the Enterprise:
  2. NATIONALITY OF THE ENTERPRISE
    1. Please indicate the following percentages of ownership of the Enterprise and provide supporting documentary evidence:
      1. Owned by a firm or firms which have the nationality of a treaty country:       %
      2. Owned by an individual or individuals who have the nationality of a treaty country (“Treaty Country National”) and who meet all other requirements of such treaties:       %
      3. Owned by an individual or individuals who are Treaty Country Nationals, meet all other requirements of such treaties, and are legal permanent residents of the United States:      %
      4. Owned by other individuals or organizations:       %
    2. If the enterprise was established by a company rather than a treaty country national, the following additional information is required:
      1. Name and address of the firm:
        Total assets:
      2. Date and place of incorporation, registration, licensing, or other establishment of the treaty country firm:
      3. Percent of enterprise owned by Treaty Country National or Treaty Country Firm. (Please attach a list of all such individuals or firms setting out their respective percent ages of ownership and their respective nationalities):
      4. General nature of business of treaty county company:
    3. If the Enterprise was established by a treaty country National rather than a Treaty country Firm, the following additional information is required:
      1. Name and address of the treaty country national:
      2. The usual source and amount of annual income of the treaty country national:
      3. Percentage of the Enterprise now owned by the treaty country national:
    4. If no one Firm or National owns more than 50% of the Enterprise, please describe and document how individuals or firms or a combination of individuals and organizations who have the nationality of a treaty country or a treaty country have operational control of the U.S. investment:
  3.  U.S./Treaty TRADE (E 1)
    For treaty purposes, trade connotes the existence of a “transaction” or exchange of goods, monies, or services in the flow of international commerce which supposedly benefits both parties to that transaction. U.S. law requires that, to qualify for E 1 status, the U.S. enterprise conducts substantial trade, principally between the U.S. and a Treaty Country. In this connection, please supply the following information with appropriate documentation, i.e. sales records, orders, shipping bills, etc.

    1. What is the amount of total annual sales of the U.S. enterprise (should include both domestic and foreign sales)?
    2. What is the total annual trade between treaty country and the U.S. enterprise (excluding sales to domestic U.S. and other foreign buyers)?
    3. What is the number of commercial transactions involved in generating the U.S./treaty country company sales amount given above?
  4. INVESTMENT STATUS (E 2)
    For treaty purposes, investment connotes the placing of funds or other capital assets “at risk” in the commercial sense, in the hope of generating a return on the funds thus risked. Please supply the following information with appropriate supporting documentation:

    1. The usual sources and amount of annual income of the treaty country national or treaty country firm:
    2. The amount of the U.S. investment (evidence is required that you have control of the funds and are close to the start of actual business operations):
    3. The nature of the U.S. investment (cash, inventory, equipment or other capital assets):
    4. If any of the U.S. investment is in the form of a mortgage debt or loan secured by commercial assets (of the U.S. enterprise) to the enterprise, state the amount:
    5. If any of the U.S. investment is in the form of a mortgage debt or loan secured by personal assets in U.S. or signature, state the amount:
    6. If your investment is in an existing enterprise, please indicate the total value of the enterprise (with supporting documents such as tax valuation or evidence of purchase price):
    7. If your investment is in a new enterprise, please indicate how you have determined that the amount of your investment is adequate to establish an enterprise of this type (from a local Chamber of Commerce, from previous experience in the U.S., or from other businesses in the area):
    8. What is the anticipated amount of net income to be generated by the U.S. investment during the next year? Please describe how this was calculated:
  5. PERSONNEL FOR U.S. ENTERPRISE
  1. How many employees does the U.S. enterprise currently have:
  2. How many employees does the U.S. enterprise currently have:
    1. S. citizens
    2. Legal permanent residents of the U.S
    3. Nationals of a Treaty Country
    4. E visa holders in executive, managerial or specialist positions
    5. L visa holders in executive, managerial or specialist positions
    6. Neither a, b, c, d or e
  3. At the end of the next year of operation, how many employees are projected who will be:
    1. S. citizens
    2. Legal permanent residents of the U.S.
    3. Nationals of a Treaty Country
    4. E visa holders in executive, managerial or specialist positions
    5. L visa holders in executive, managerial or specialist positions

VII. LIST OF EXECUTIVE, MANAGERIAL AND SPECIALIST PERSONNEL

Please provide the numbers of Treaty country s and Americans who occupy positions in the U.S. which are Executive, Managerial and/or Specialist in nature:

If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.