The United States has signed Treaties of Commerce and Navigation with a whole host of foreign countries. Treaty traders or investors, who are citizens of such countries, are eligible to file for the E-category visas. Please refer to the List of Treaty Countrues for more information on which countries have treaties with the United States. AS a result there are three catefories of E visas the E1 visa or so called Treaty Treaders; E2 visa or so called Treaty Investores and E3 visa which is limited to Australian Speciality Occupation workers,
Treaty traders are defined as those who carry on substantial, principal trade in goods, services and/or technology between the country of their citizenship and the United States of America. Trade is defined as the existing international exchange of items between the USA and the treaty country. This means that there should be a continuous, sizable flow of international trade items, with numerous exchanges of valuable items at a time. Trade items include, but are not limited to: goods, services, international banking, insurance, transportation, tourism, technology and transfer of technology, and some news-gathering activities. Treaty traders and their qualified employees may only work in the activity for which the classification was approved, with narrow exceptions for work for a parent or a subsidiary company. Should there occur a substantive change in the terms or conditions of the Treaty traders’ employment, the USCIS must be notified by filing a new classification application, with the fees attached.
Treaty investors are defined as those who direct operations of a business in which they have invested, or are actively investing, a substantial amount of money or capital in a bona fide U.S. business. A bona fide business may be commercial or entrepreneurial in nature, and it must have capacity to generate above-marginal profits. To meet the criteria, a treaty investor must be coming into the U.S. for the sole purpose of developing or directing an investment enterprise, and must either have a position of control, such as manager or director, or have at least a 50% ownership of the enterprise. A qualified investment must be substantial to ensure the investor’s commitment to the success of the enterprise, and must bear an element of commercial risk and be placed with an intention of generating a profit. It is understood that a qualified investment may fail, and bring about a partial or total loss of the invested capital. To be eligible, a treaty investor must show that the funds invested have not been gained from a criminal activity.
The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation. The spouse and children need not be Australian citizens. However the U.S. does not recognize De Facto relationships for the purposes of immigration, and to qualify as a spouse you will need a marriage certificate. The definition of “specialty occupation” is one that requires: (1) A theoretical and practical application of a body of specialized knowledge; and (2) The attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
In determining whether an occupation qualifies as a “specialty occupation,” follow the definition contained in the Immigration and Nationality Act (INA) 214 (i)(1) for H-1B nonimmigrants and applicable standards and criteria determined by the Department of Homeland Security (DHS) and United States Citizenship and Immigration Service (USCIS). Please see the
Treaty traders and treaty investors may petition for a visa on their own behalf, and they may also petition for their spouses and unmarried children under 21, as well as certain employees. Such qualified employees must have the same country of citizenship as the employer, and either be employed in a managerial or supervisory capacity, or be otherwise essential to the business operations. An enterprise may petition for its employees under the E-1 category, if such enterprise is at least 50% owned by persons in valid non-immigrant treaty trader status. Employers, who are classifiable as treaty traders may send their employees to the USA under this classifications even if such employers remain abroad. A treaty trader or a treaty investor may come into the USA on any non-immigrant visa, and, when in the USA, file a request to change status to E-1 or E-2; or complete all paperwork abroad, and then apply for a visa at a U.S. port of entry. E-1 or E-2 visas are granted for a maximum initial period of two years, but they may be extended indefinitely in two-year increments. All treaty traders must have an intention to depart the U.S. once their E-1 visa expires or is terminated for any reason.
Unlike the qualified employees themselves, the family members do not have to be nationals of a treaty country. The E-1 or E-2 family members may work in the U.S. without restriction, but they must obtain an employment authorization document. It is important for the E-1 or E-2 treaty trader, treaty investor or qualified employee family members to carefully keep track of the dates of validity of their status.