According to U.S. immigration law, nationals of nations with qualifying treaties of commerce and navigation with the United States may be granted E visas. Among these qualifying treaties are bilateral investment agreements and treaties of friendship, commerce, and navigation (FCNs) (BITs). A person must possess at least 50% of the company in order to be eligible for a Treaty Trader/Investor visa, in addition to being a citizen of the treaty country.
Two Types: Treaty Trader Visa (E-1) & Treaty Investor Visa (E-2)
A treaty citizen entering the United States solely to engage in considerable international trade, primarily between the United States and the foreign state, is eligible for the Treaty Trader visa (E-1). The treaty national must be a treaty trader, an essential employee, working in a managerial or executive role, or have highly specialised skills required for the successful functioning of the company or treaty trader in order to qualify for an E-1 visa. Normal skilled or unskilled workers are ineligible.
A treaty national (or an entity owned by the treaty national(s)) who intends to develop and oversee the operations of an enterprise in which the treaty national has invested or is actively considering investing a sizable amount of capital is eligible for the Treaty Investor visa (E-2). If the applicant for an E-2 visa is not the main investor, they must be an essential employee who holds a supervisory, executive, or highly specialised skill position.
Trade: Meaning & Volume
Trade must meet three criteria in order to qualify for an E-1 visa: (1) it must be an exchange; (2) it must be global in scope; and (3) it must contain qualifying activities.
To qualify as trade under the Immigration and Nationality Act, there must be a real exchange of qualifying commodities—such as products, money, or services—in a meaningful way (INA). Trade must be conducted globally. Consequently, the United States and the other treaty party must engage in a verifiable exchange of commodities or services.
In addition, the basic rule for E-1 states that more than half of all the international trade, regardless of location, carried out by the treaty trader must be between the United States and the treaty country of the foreign national's nationality.
There is no clear cut definition of what would qualify as a "substantial" amount of capital for the purposes of the E-2 visa. There is no predetermined minimum investment required to be deemed large. A newly established business's actual start-up costs are what it actually takes to get it up and running. According to the U.S. Department of State, the costs of investing in a business can vary greatly depending on the type of business: buying a factory can cost many millions of dollars, but starting a small consulting firm only costs a fraction of that.
Substantial Investment Is More Than Marginal
A marginal enterprise is one that cannot currently or in the future produce enough revenue to support the single investor and his or her family on more than a subsistence level. A business that lacks the ability to earn such income but has the potential to contribute significantly to the economy in the present or the future is not a marginal business. The anticipated future capacity should typically be attainable within five years on the date the foreigner starts the enterprise's regular business operations.
Advantages Of E-1/E-2 Visa
E visas are superior to other nonimmigrant visas in some ways. The E visa categories do not call for the establishment of a branch, subsidiary, or parent of a foreign firm in the United States, in contrast to the L-1 visa. In comparison to the H-1B visa category, the E visa category is subject to fewer governmental controls. There are no requirements for the prevailing wage, labour condition application attestation and publishing, or public access file. There is no restriction on the number of E visas that may be issued initially or extended.
Both E-1 and E-2 visa holders typically receive a two-year initial stay with the option of limitless renewals. However, all E nonimmigrants must continue to intend to leave the country after their status expires or is cancelled. Also permitted as companions or followers are couples and unmarried children who are under 21 and can obtain work authorization, as well as treaty traders, investors, and employees. Furthermore, they don't necessarily need to share the same nationality as the investor or employee in the pact.