E-1 and E-2 status are popular options for owners and managers of foreign-based businesses that want to work in the United States without making a large up-front investment. Contact us to learn more about these visas.
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Treaty Traders
A treaty trader must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation (“treaty country”). See below for a full list.
- Carry on substantial trade (numerous transactions in goods, services, etc. over time).
- Carry on principal trade between the United States and the treaty country (more than 50% of the total volume of international trade carried out by the treaty trader must be between the two countries).
- Work for an employer of the treaty country’s nationality, or its subsidiary.
- Nationality of corporate employers is determined by their ownership, not by their country of incorporation.
- A treaty trader can transfer within the company group but cannot work for unrelated employers in the U.S.
- Either:
- Engage in duties of an executive or supervisory character (take control of/responsibility for business operations), OR
- Have special qualifications (skills which make the employee’s services essential to the efficient operation of the business).
E-1 visa holders are generally allowed to stay in the US for two years, and this period can be renewed in two-year increments indefinitely. However, the permitted period of stay may be shorter, and it is important for visa holders to check their I-94 record after each entry to avoid an accidental overstay.
Their spouses and children may also apply for visas, and spouses may apply for work authorization.
Treaty Investors
A treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation (“treaty country”)
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States. There is no minimum dollar amount, but the amount is evaluated in comparison to the total capital needed for the business.
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
E-2 status is available to investors themselves, as well as to employees of investors to the extent such employees meet the following criteria:
- Work for an employer of the treaty country’s nationality, or its subsidiary.
- Nationality of corporate employers is determined by their ownership, not by their country of incorporation.
- Meet the definition of “employee” under relevant law.
- Either:
- Engage in duties of an executive or supervisory character (take control of/responsibility for business operations), OR
- Have special qualifications (skills which make the employee’s services essential to the efficient operation of the business).
E-2 visa holders are generally allowed to stay in the US for two years, and this period can be renewed in two-year increments indefinitely. However, the permitted period of stay may be shorter, and it is important for visa holders to check their I-94 record after each entry to avoid an accidental overstay.
Their spouses and children may also apply for visas, and spouses may apply for work authorization.
The L-1 Alternative
Individuals who do not meet the requirements for E-1 or E-2 status may meet the requirements for L-1 intracompany transferee status. The major differences between these visas are:
- L-1 is not limited to treaty countries or to foreign-based employers.
- L-1 has a maximum total duration of stay (five or seven years), but it is somewhat more straightforward to convert L-1 status to permanent resident (green card) status because E visas require “non-immigrant intent.”
- L-1 requires at least one year of prior employment for the employer group outside the US.
- L-1 status can only be obtained by applying for a visa outside the US, not through adjustment while in the US.
- L-1 does not require any particular investment in the US or trade between the US and home country, but requires a more thorough review of the substance of the business operation in the US (such as number of employees and space to house them), especially when renewing status for a new office in the US.
Other Alternatives
Workers in occupations that require specialized college-level education may qualify for an H-1B visa regardless of their employer’s home country. These visas are popular for sponsoring specialists in software development, finance, and other knowledge-intensive fields. However, H-1B visas are subject to annual issuance caps, strict annual application schedules, and political scrutiny, making them relatively costly and time-consuming for private sector employers.
A person with “extraordinary ability” in science, business, the arts, or another particular field of endeavor may work for a US employer by applying for an O-1 visa. This visa requires evidence of recognition by peers in the field, such as awards and testimonial letters. It is a fixed-term visa but can be renewed over an indefinite period of time.
Foreign managers and executives transferring to an established US affiliate may qualify for an EB-1 visa, which grants “green card” status upon initial entry, allowing the individual to stay indefinitely. EB-1 status requires at least three years of employment for the employer group outside the US, of which at least one year must be in an executive or managerial capacity, and requires the US operation to have been doing business for at least one year.
Larger investments may qualify an investor for EB-5 immigrant investor status, which grants “green card” status upon initial entry, allowing the individual to stay indefinitely. EB-5 status requires a large investment (from November 2019, $1.8 million in “high-employment areas” or $900,000 in “targeted employment areas”), and the enterprise must create 10 full-time jobs.
Treaty Countries
E-1 and E-2 status can only be granted if a treaty exists between the United States and the home country of the applicant. As of October 2019, these visas can be used by citizens of the following countries.
Grenada, Montenegro, and Turkey are notable in offering citizenship to foreign investors, making these countries potential “bridges” to E status for investors from non-qualifying countries.
Citizenships eligible for E-1 or E-2 status:
Argentina, Australia, Austria, Belgium, Bolivia (E-2 status for investments prior to June 2012 only), Bosnia and Herzegovina, Brunei, Canada, Chile, Colombia, Costa Rica, Croatia, Denmark (except Greenland), Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Kosovo, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Montenegro, Netherlands, New Zealand, Norway (except Svalbard), Oman, Pakistan, Paraguay, Philippines, Poland, Serbia, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, United Kingdom, Yugoslavia
Citizenships eligible for E-1 status only:
Brunei, Greece
Citizenships eligible for E-2 status only:
Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo (Brazzaville), Congo (Kinshasa), Czechia, Ecuador (investments prior to May 2018 only), Egypt, Georgia, Grenada, Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia, Morocco, Panama, Romania, Senegal, Slovakia, Sri Lanka, Trinidad & Tobago, Tunisia, Ukraine