Nonimmigrant visas may be issued to aliens coming to the United States pursuant to the provisions of a treaty of commerce and navigation between the U.S. and his foreign state of which he is a national if the alien is coming (1) solely to carry on substantial trade in services or technology between the U.S. and that foreign state, or (2) solely to develop and direct the operations of an enterprise in which he or she has invested a substantial amount of capital, and (3) upon a showing that the alien will depart from the U.S. upon the termination of the alien's status. The treaty trader (E-1) and treaty investor (E-2) can file their own petition without the need of an employer and without the necessity of applying first to CIS for approval. These visas are available directly from the American Consulate abroad. Not all treaties contain both trader and investor provisions, therefore, a careful examination of the treaty is necessary. These nonimmigrant visas are the closest visa to permanent residence possible because successive admissions and/or extensions are available without restriction so long as the investment is viable. No foreign residence is required. The first step is to determine if there is a treaty available on which to base the visa.
|Treaty Traders (E-1 Visa)
The alien or firm must be national of country which has treaty with U.S. To qualify as an individual treaty trader, it is the nationality of the individual trader that is pertinent. If the individual is a treaty trader employee, the prospective employer must be a national of a treaty country, and if a corporation, it must be principally owned (more than 50%) by a person or persons having the nationality of the treaty country.
The alien's or firm's activities in the U.S. must constitute TRADE. The trade must be of a substantial nature which is international in scope, carried on by the alien in his or her own behalf or as an agent of a foreign person or company engaged in trade which is between the U.S. and the foreign state. The exchange of goods or service must flow between the two treaty countries and must be traceable or identifiable. To be substantial means, with reference to trade or capital, an amount of trade or capital which is a continuous flow involving numerous transactions over time. Consular officers will focus primarily on the volume of trade conducted as well as the monetary value of the transactions. Back To Top
Treaty investors must be a national of a country which has a treaty of commerce and navigation containing treaty investor provisions. The alien must have invested or must be actively in the process of investing a substantial amount of capital in an enterprise in the U.S. This means placing of funds or other capital at risk in the commercial sense in the hope of generating a return on the funds risked. If the funds are not subject to partial or total loss if the business fortunes reverse, the it is not an "investment" in the sense intended for this type of visa.
If the funds invested arise from indebtedness, then (1) the mortgage debt or commercial loan that is secured by the assets of the enterprise can not be counted toward the investment, or (2) if the alien's own personal assets are used to secure a loan, then the funds can be used as part of the invested total.
To determine if an investment has been made, the consular officer will look to the (1) amount of cash transferred to business bank account or similar fund; (2) payments for leases or rents for property or equipment which can be counted toward total invested funds; (3) amount spent for purchase of equipment and/or inventory; (4) value of goods or equipment transferred t the U.S. Money that is idle in a savings account does not constitute an investment. Also, investor status will not be given to a nonprofit organization since the investment is not made to generate a profit.
No minimum dollar amount is required to meet the substantiality test, but a test of proportionality is used to determine whether or not the investment is "substantial". The test involves a comparison between the amount of qualifying funds invested and the cost of the business (newly created or established). The enterprise must be a real operating commercial enterprise, a business venture productive of some service or commodity. It must be more than marginal, or solely for the purpose of earning a living. If the investment will return only enough income to provide a living for the applicant the his/her family, it will be denied.
Derivative relatives of an E visa alien may enter as the nonimmigrant dependent of the alien except that elderly parents are not permitted as derivatives under this classification. Derivative spouses and children under 21 may enter as E-3 visa nonimmigrants based on the granting of E-1 or E-2 status to the principal alien. They can come with the principal alien, or they can follow-to-join at a later time. If not eligible for the E-3 derivative status, dependent relatives can request a Visitor Visa to join their family members, then request an extension once in the U.S. Back To Top
To qualify to bring an employee into the U.S. as an E nonimmigrant, the prospective employer in the U.S. must be maintaining status under the E statute (1) by meeting the nationality requirement (a lawful permanent resident can not bring in employees); (2) by having the same nationality as the employee; and (3) by maintaining E status in the U.S. The employee must be engaged in duties of an executive or supervisory character, which must be a principal and primary function inherent in the job and not an incidental or a collateral function. Factors the consular officer consider are the extent of the alien's role in the firm's organizational structure, the duties involved, the degree to which the alien will have ultimate control and responsibility for the firm's overall operations, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the alien possesses qualifying executive or supervisory experience.
If the employee has a minor capacity role, then he or she must be specially qualified or skilled which make his services "essential" to the efficient operation of the employer's enterprise. Factors considered are the alien's degree of proven expertise in the area of specialization, the uniqueness of the specific skills, the function of the job to which the alien is coming to perform, and the salary such special expertise can command.
If there is a strike or lockout as a result of a labor dispute in the occupational classification at the alien's place of employment, then aliens from Canada and Mexico are not allowed to enter if his or her entry will adversely affect the settlement of the strike or lockout.
A personal or domestic servant accompanying an E visa alien may be classified as a visitor for business if he or she qualifies for the B visitor visa.
Treaties or equivalent arrangements providing for trade and investment (E-1 and E-2) status are in effect with the following countries:
The following countries allow both E-1 and E-2 visas:
only E-1 treaty-trader status exist with the following countries:
Note the following special conditions with regard to certain treaties.
Australia and Sweden
investors" must who wish to qualify for a conditional green card
(permanent residence) must demonstrate that a "qualified
investment" is being made in a new commercial enterprise located
within an approved Regional Center; and, show, using reasonable
methodologies, that 10 or more jobs are actually created either directly
or indirectly by the new commercial enterprise through revenues
generated from increased exports, improved regional productivity, job
creation, or increased domestic capital investment resulting from the
pilot program. This
category is called EB-5 preference, or some term it the Million Dollar
resident status based on EB-5 eligibility is available to investors,
either alone or coming with their spouse and unmarried children.
Eligible aliens are those who have invested -- or are actively in the
process of investing -- the required amount of capital into a new
commercial enterprise that they have established. They must further
demonstrate that this investment will benefit the
general, "eligible individuals" include those who establish a new commercial enterprise by creating an original business;
purchasing an existing business and simultaneously or subsequently
restructuring or reorganizing the business such that a new commercial
enterprise results; or expanding an existing business by 140 percent of
the pre-investment number of jobs or net worth, or retaining all
existing jobs in a troubled business that has lost 20 percent of its net
worth over the past 12 to 24 months; and who have invested -- or who are
actively in the process of investing -- in a new commercial enterprise
at least $1,000,000, or at least $500,000 where the investment is being
made in a "targeted employment area," which is an area that
has experienced unemployment of at least 150 per cent of the national
average rate or a rural area as designated by OMB; and whose engagement
in a new commercial enterprise will benefit the United States economy
and create full-time employment for not fewer than 10 qualified
individuals; or maintain the number of existing employees at no less
than the pre-investment level for a period of at least two years, where
the capital investment is being made in a "troubled business,"
which is a business that has been in existence for at least two years
and that has lost 20 percent of its net worth over the past 12 to 24
These requirements are strictly scrutinized by CIS in evaluating the petition for permanent residence based on the investment. There has been too much creative financing arrangements and fraud in this area, and the entire program has been subjected to blackouts from time to time. It is a viable option open to millionaires who want permanent residence, but the EB 1-3 multi-national executive provides a simpler route and less complex route. For a full consultation, please contact us. Back To Top