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What is an E-1 and E-2 Visa?

The E-1 nonimmigrant classification allows treaty traders who principally engage in substantial trade between the United States and the treaty country to stay and work in the trading business in the United States. The E-2 nonimmigrant classification allows treaty investors who invest a substantial amount of capital in a U.S. business to stay and work at the investment enterprise in the United States.

The E-1 and E-2 classifications also allow certain employees of the E-1 trader or E-2 investors to stay and work in the United States. Such employees must engage in duties of an executive or supervisory capacity or of a capacity which requires special qualifications essential to the operation of the enterprise. In this blog, we will explain the requirements and specific considerations of the E-1 and E-2 classifications.

Table of Contents

1. Eligibility for an E-1 and E-2 Visa
2. How to File an E-1 or E-2 Application
3. How to Request Premium Processing
4. Required Fee for an E-1 or E-2 Application
5. Period of Authorized Stay
6. Change of Employers
7. Changes in Employment Conditions
8. E-Visa Company Registration Programs/Databases
9. Family of E-1 or E-2 Visa Holders

1. Eligibility for an E-1 and E-2 Visa

I. Treaty Trader (E-1 Visa)

To qualify for an E-1 visa, a treaty trader must satisfy the eligibility criteria as follows:

National of the Treaty Country

A treaty trader must be a person who has the nationality of the treaty country.1 An enterprise or organization that performs the intended treaty trader business in the United States must be at least 50% owned by persons in the United States having the nationality of the treaty country and maintaining E-1 treaty trader status or who, if not in the United States, would be classifiable as a treaty trader.2

Entry Solely to Carry on Substantial International Trade

A treaty trader must also be seeking to enter the United States solely to carry on trade of a substantial nature, which is international in scope, on his or her behalf. Such a treaty trader must also engage in trade principally between the United States and the treaty country of which the treaty trader has the nationality.

Substantial Trade between the United States and the Treaty Country

As mentioned, a treaty trader must engage in a substantial trade to qualify for E-1 status. “Trade” is the existing international exchange of items of trade for consideration between the United States and the treaty country. “Items of trade” include goods, services, international banking, insurance, monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities.

“Substantial trade” is an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. Thus, a single transaction may not establish or maintain treaty trader status, regardless of how protracted or monetarily valuable the transaction. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight will be given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions which is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.

Principal Trade between the United States and the Treaty Country

In addition to the substantial trade, there must exist a principal trade between the United States and the treaty country. Principal trade between the United States and the treaty country exists when over 50% of the volume of international trade of the treaty trader is conducted between the United States and the treaty country of the treaty trader’s nationality.

Intent to Depart the U.S. after E-1 Status Terminates

E-1 treaty traders must have an intent to depart the United States when the E-1 status terminates.

II. Treaty Investor (E-2 Visa)

To qualify for an E-2 visa, a treaty investor must satisfy the eligibility criteria as follows:

National of the Treaty Country

A treaty investor must be a person who has the nationality of the treaty country.3 An enterprise or organization that performs the intended treaty investor business in the United States must be at least 50% owned by persons in the United States having the nationality of the treaty country and maintaining E-2 treaty investor status or who, if not in the United States, would be classifiable as a treaty investor.4

Investment of a Substantial Amount of Capital

A treaty investor must have invested, or be actively in the process of investing, a substantial amount of capital to a bona fide enterprise in the United States. The enterprise must be a real and active commercial or entrepreneurial undertaking producing some service or commodity for profit. The enterprise must also meet applicable legal requirements for doing business in the particular jurisdiction in the United States.

Investment

Investment means the treaty investor’s placing of capital, including funds and other assets, with the objective of generating a profit. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The treaty investor must be in possession of and have control over the capital invested or being invested.

In addition, the investment must not be a marginal investment solely for the purpose of earning a living for the investor and the investor’s family.5 The investment must be at risk as well. That is, the capital must be subject to partial or total loss if investment fails. In addition, the source of the investment must be legit.

Substantial Amount of Capital

A substantial amount of capital constitutes the amount that is:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital (inverted sliding scale).

Entry Solely to Develop and Direct the Enterprise

A treaty investor must also be seeking to enter the United States solely to develop and direct the investment enterprise. To satisfy this requirement, the treaty investor must own at least 50% of the E-2 enterprise or possess operational control through a managerial position or other corporate device, or by other means.

Intent to Depart the U.S. after E-2 Status Terminates

E-2 treaty investors must have an intent to depart the United States when the E-2 status terminates.

III. Employee of Treaty Trader (E-1 Visa)/Employee of Treaty Investor (E-2 Visa)

Employees of a treaty trader or treaty investor may qualify for E-1 or E-2 status respectively if they satisfy the following conditions:

National of the Treaty Country

To qualify for E-1 or E-2 status, employees of a treaty trader or treaty investor must have the same nationality of the E-1 treaty trader or E-2 treaty investor in the United States or a person who would be classifiable as a treaty trader or treaty investor if the person is not in the United States.

If the principal employer is an enterprise or organization and not an individual, employees of the enterprise or organization must have the same nationality of the owners of the enterprise or organization.

Employee Position

An employee of a treaty trader or treaty investor must be a qualifying employee of an employer who is:

  • A person in the United States having the nationality of the treaty country and maintaining E-1 treaty trader status or E-2 treaty investor status, or if not in the United States, would be classifiable as a treaty trader or treaty investor; or
  • An enterprise or organization at least 50% owned by persons in the United States having the nationality of the treaty country and maintaining E-1 treaty trader status or E-2 treaty investor status or who, if not in the United States, would be classifiable as a treaty trader or treaty investor.6

Executive or Supervisory Capacity/Special Qualifications

Employees of a treaty trader or treaty investor must be coming to the United States to engage in duties of an executive or supervisory capacity or of a capacity which requires special qualifications essential to the efficient operation of the enterprise.

Executive or Supervisory Capacity

The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.

In determining whether the applicant has established possession of the requisite control and responsibility, USCIS will consider, where applicable, that an executive position provides the employee great authority to determine policy of and direction for the enterprise; that a supervisory position grants the employee supervisory responsibility for a significant proportion of the enterprise’s operations and does not generally involve the direct supervision of low-level employees; and whether the applicant possesses executive and supervisory skills and experience; among others.

Special Qualifications

Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.

The essential nature of the employee’s skills to the employer is determined by assessing certain elements, including:

  • The degree of proven expertise of the employee in the area of operations involved;
  • Whether others possess the employee’s specific skill or aptitude;
  • The length of the employee’s experience and/or training with the treaty enterprise;7
  • The period of training or other experience necessary to perform effectively the projected duties;
  • The relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command;
  • That knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement; and
  • Whether the skills and qualifications are readily available in the United States.

Intent to Depart the U.S. after E-1 or E-2 Status Terminates

E-1 or E-2 employees must have an intent to depart the United States when the E-1 or E-2 status terminates.

Subsidiary Employment

E-1 and E-2 employees may work for the parent treaty organization or enterprise or any subsidiaries of the parent organization or enterprise so far as:

  • The requisite parent-subsidiary relationship between the enterprise or organization and any subsidiaries thereof is established and the subsidiary independently qualifies as a treaty organization or enterprise;
  • Subsidiary employment requires executive, supervisory, or essential skills; and
  • The work is consistent with the terms and conditions of the activity forming the basis of the E-1 or E-2 classification.

2. How to File an E-1 or E-2 Application

An applicant for E-1 or E-2 status may file for the E-1 or E-2 status directly through the Department of State by applying for an E-1 or E-2 visa (U.S. Consular Process). If the applicant is physically in the United States and satisfies certain requirements, the applicant may apply for a change of status to E-1 or E-2 classification. An E-1 or E-2 employer may file for a change of status to E-1 or E-2 classification on the employee’s behalf if the employee is physically in the United States.8

Applications must be accompanied with required documents including evidence to establish eligibility for E-1 or E-2 status. Approval of change of status does not guarantee subsequent E-1 or E-2 visa application’s approval by the U.S. consulate as the U.S. consulate makes an independent determination of admissibility.

3. How to Request Premium Processing

An applicant who seeks change of status to E-1 or E-2 classification may request a premium processing for the application by filing a proper Form and filing fee of $2,805 with USCIS. If the applicant files the request properly, USCIS will take one of the following adjudicative actions within 15 calendar days:

  • Issue an approval notice, a denial notice, a notice of intent to deny, or a request for evidence; or
  • Open an investigation for fraud or misrepresentation

If the E-1 or E-2 application requires the submission of additional evidence or a response, the 15-day premium processing time will reset. Once USCIS receives additional evidence or response, a new premium processing time will begin.

4. Required Filing Fee for an E-1 or E-2 Application

An applicant who seeks change of status to E-1 or E-2 classification must pay the USCIS filing fee of $460. Starting April 1, 2024, this filing fee will increase to $1,015, and for small employers and nonprofits, this fee will increase to $510. Also starting April 1, 2024, such applicant must pay the Asylum Program fees of $600 or $300 for small employers. If such an applicant travels outside the United States, the applicant needs to obtain an E-1 or E-2 visa through the U.S. Consular process. If an applicant directly applies for an E-1 or E-2 visa through the U.S. Consular process, the filing fee is currently $315.

5. Period of Authorized Stay

In principle, E-1 treaty traders, E-2 treaty investors, and their employees will be allowed an initial stay of up to 2 years. Such treaty traders, treaty investors, and employees may request extension of stay in increments of up to 2 years, without limitations to the number of extensions.9 Still, E-1 and E-2 visa holders must maintain an intent to depart the United States when their E-1 or E-2 status expires or is terminated.

Treaty traders, treaty investors, and their employees may travel abroad and will generally be granted an automatic 2-year period of admission when returning to the United States. However, if their passport expires before the requested 2-year period, they may be granted at least up to 6 months beyond the passport’s validity period.

Grace Period

10-Day Grace Period

In addition to the validity period of E-1 or E-2 status, an individual in E-1 or E-2 status may be admitted to the United States for an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.

Maximum 60-Day Grace Period

If an individual on E-1 or E-2 status loses the status due to solely the cessation of the E-1 or E-2 employment, such an individual may be considered to maintain the status for up to 60 days or until the end of the original authorized period of stay on the E-1 or E-2 status, whichever is shorter.

Within the 10-day and maximum 60-day grace period, the E-1 or E-2 visa holders may continue a job search and apply for an extension of stay or change of status. However, such individuals may not work during the grace period unless otherwise authorized. USCIS will determine whether the maximum 60-day grace period applies to each case.

6. Change of Employers

A treaty trader, treaty investor, and treaty employee may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status. Still, as mentioned, an E-1 or E-2 employee may work for the treaty organization’s parent company or one of its subsidiaries if it satisfies certain requirements.

For an E-1 or E-2 employee to change employers, a new employer must properly file a new, non-frivolous application before the employee’s period of authorized stay expires. In addition, such an employee must not have worked in the United States without work authorization. The employee may begin working for the new employer once he/she obtains approval of the newly filed application.

7. Changes in Employment Conditions

Substantive Changes

E-1 or E-2 visa holders must file a new application and obtain its approval when there are substantive changes in their employment conditions on E-1 or E-2 status. The E-1 or E-2 holders must file a new application requesting extension of stay in the United States. They must also submit evidence of continued eligibility for E classification in the new capacity. Or they may obtain a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry.

USCIS will deem that there has been a substantive change necessitating the filing of a new application where there has been a fundamental change in the employing entity’s basic characteristics. This include a merger, acquisition, or sale of the division where the E-1 or E-2 visa holder works.

Non-Substantive Changes

Neither prior approval nor a new application is required if there is no substantive, or fundamental, change in the terms or conditions of the E-1 or E-2 visa holders’ employment which would affect their eligibility for E classification. Further, prior approval is not required if corporate changes occur which do not affect the previously approved employment relationship, or are otherwise non-substantive. To facilitate admission to the United States, individuals on E-1 or E-2 status should demonstrate to the satisfaction of the immigration officer at the port-of-entry their admissibility under the E classification.

Request for USCIS’ Advice

E-1 or E-2 visa holders may seek advice from USCIS whether any change in employment that might affect their E-1 or E-2 status requires the filing of another application. In response to the advisory request, the USCIS adjudicator either recommends the filing of another application or prepares a new I-797 that reflects the changes.

8. E-Visa Company Registration Programs/Databases

Consular sections may maintain an E-visa company registration programs and databases for utility and efficiency of the adjudication. The programs and databases contain the information on registered companies that the government previously have determined that the companies satisfy E visa standards and that those companies continuously and regularly employ E visa applicants.

To be in good standing as a company that is registered or seeking registration, there usually must:

  • Be an employee that is in E status and/or who holds valid E visa; and
  • Be a review of the registration every 5 years, at a minimum, to ensure that the employer/employees are in the appropriate visa category or status and that the enterprise in the United States remains qualified (i.e. more than marginal, requisite nationality, substantial trade, etc.).

9. Family of E-1 or E-2 Visa Holders

Spouse and unmarried children under the age of 21 of an E-1 or E-2 visa holder may be eligible for the same classification as the principal E-1 or E-2 visa holder, regardless of their nationality. Spouses of E-1 workers in valid E-1 or E-1S status10 and spouses of E-2 workers in valid E-2 or E-2S status11 are considered employment authorized incident to status. Such spouses who are employment authorized incident to status are not required to request employment authorization, but may still file Form I-765, Application for Employment Authorization to obtain an Employment Authorization Document (EAD).

Also, certain E spouses qualify for the automatic extension of their EADs for 180 days. To qualify for the automatic extension, they must have timely filed a renewal based on the same E nonimmigrant status and have an unexpired Form I-94 showing their E-1, E-1S, E-2, or E-2S status. Any such automatic extension will terminate automatically on the earlier of:

  • The end of the validity period of the nonimmigrant status, as shown on the Form I-94;
  • The approval or denial of the application to renew the previous EAD using Form I-765; or
  • 180 days from the date of the expiration of the previous EAD.

Lastly, an E-1 treaty trader, E-2 treaty investor, and their employees may travel abroad and will generally be granted an automatic 2-year period of readmission when returning to the United States. However, this authorized period of stay might vary for their spouses and children if they separately travel abroad and return to the United States. Thus, such spouses and children on E status must carefully review their period of stay and apply for an extension of stay before their authorized stay expires.

  1. “Treaty country” is a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges by specific legislation. ↩︎
  2. To ensure compliance, USCIS may request additional documentation related to how the applicant obtained treaty country nationality for all E-1 and E-2 filings received on or after December 23, 2022. If the applicant obtained treaty country nationality through a financial investment, USCIS may also require additional documentation showing that the applicant has been continuously domiciled in the treaty country for at least 3 years at any point before applying for the E-1 or E-2 classification. ↩︎
  3. See footnote 1. ↩︎
  4. See footnote 2. ↩︎
  5. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within 5 years from the date the treaty investor starts normal business activity of the enterprise. ↩︎
  6. Shares held by U.S. permanent residents cannot be counted in determining nationality of the ownership even if the persons have nationality of a treaty country. ↩︎
  7. However, previous employment with the treaty enterprise is not required to qualify for E-1 or E-2 employees. ↩︎
  8. The spouse or minor children of an applicant seeking a change of status to that of E-1 treaty trader or E-2 treaty investor shall file concurrent applications for change of status to derivative E treaty classification. ↩︎
  9. With limited exceptions, it is presumed that employees of treaty enterprises with special qualifications who are responsible for start-up operations should be able to complete their objectives within 2 years. Absent special circumstances, therefore, such employees will not be eligible to obtain an extension of stay. ↩︎
  10. Except for spouses of employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO), who are required to apply for employment authorization. ↩︎
  11. Except for spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are required to apply for employment authorization. ↩︎

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