Entering the U.S. as an Investor (E-1 & E-2)

The E nonimmigrant visa category is intended for business owners, managers, and employees who seek to enter or remain in the U.S. to work for an enterprise engaged in trade between the U.S. and a foreign country. The E nonimmigrant category is only available if a “treaty of commerce and navigation” or a “bilateral investment treaty” exists between the U.S. and a foreign country.
In general, the following requirements must be met to qualify for E nonimmigrant status:

1. a treaty must exist between the U.S. and foreign country;
2. a majority ownership or control of the investing or trading company must be held by nationals of the foreign country; and
3. Foreign citizenship must be held by each employee or principal of the company who seeks E status under the treaty.

Requirements for E-1 Treaty Trader

1. The requisite treaty or equivalent exists.
   For Canadian citizens, there is a treaty between the U.S. and Canada so this is satisfied.
   For landed immigrants to Canada, there must be a similar treaty between the U.S. and the applicant’s country of nationality.
2. The individual and/or business possesses the nationality of the treaty country.
   For Canadian citizens, a copy of the passport, birth certificate, or citizen card is sufficient proof.
   For landed immigrants, the equivalent document from their country of nationality and their landed immigrant papers will suffice.
   For businesses with more than one owner, please provide the above documents in order to show that at least 50 percent of the business is owned by those with the nationality of the treaty country.
3. The activities constitute trade within the meaning of INA 101(a)(15)(E). Trade, in this sense, must satisfy the following three requirements:
   a. Trade must constitute an exchange.
   b. Trade must be international.
   c. Trade must be in existence.
   The point of this visa is to promote trade between the U.S. and Canada. Therefore, submit documents (invoices, bills of lading, contracts, etc.) which clearly show that the individual/business is currently exchanging goods or services between Canada and the U.S.
4. Such trade is substantial.
   “Substantial” describes the flow of goods or services between the U.S. and Canada and involves weighing both the applicant’s volume of trade and the number of transactions. The best example of “substantial” trade is a large number of high-valued transactions. The best example of trade that isn’t “substantial” is a small number of low-valued transactions. The applicant needs to supply documents which make the case that trade is substantial in this sense.
5. Trade is principally between the U.S. and the treaty country
   At least 50 percent of the applicant’s international trade (note: not total trade) must be between the U.S. and Canada. Again, show bills of lading, invoices, and Customs documents demonstrating this trade.
6. The applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the U.S. To bring an employee into the U.S., the applicant must meet the following criteria:
   The prospective employer must meet the nationality requirements as described above,
   a. The employer and employee must have the same nationality, and
   b. The employer, if not resident abroad, must be maintaining E status in the U.S.
   An executive or supervisory position is one which entails a high degree of responsibility for the firm’s overall operations and the executive or supervisory element is the primary function of the job. In other words, please include a brief narrative which describes the job position, specifically addressing these issues, and which explains why the prospective employee is qualified for this job.
   An essential employee is one without which the applicant would not be able to do business in the U.S. The burden of proof clearly lies with the applicant to prove that the prospective employee is essential. Again, the applicant should provide a brief narrative showing that the employee merits consideration as essential.
7. The applicant intends to depart the United States when the E status terminates.
   The applicant must include a short statement to this effect.

Requirements for E-2 Treaty Investor

1. Requisite treaty or equivalent exists.
   For Canadian citizens, there is a treaty between the U.S. and Canada so this is satisfied. For landed immigrants to Canada, there must be a similar treaty between the U.S. and the applicant’s country of nationality.
2. Individual and/or business possesses the nationality of the treaty country.
   For Canadian citizens, a copy of the passport, birth certificate, or citizen card is sufficient proof. For landed immigrants, the equivalent document from their country of nationality and their landed immigrant papers will suffice.
   For businesses with more than one owner, please provide the above documents for all owners in order to show that the business is at least 50 percent owned by those with the nationality of the treaty country.
3. Applicant has invested, or is actively in the process of investing. Key factors in determining whether the applicant has invested, or is in the process of investing are:
   Possession and control of the assets invested. The applicant needs to show that the assets or funds invested are in his/her name and they have control over them. (Note: An inherited business is not an investment.)
   The investment must be “at-risk”. To be “at-risk” the investment funds must be subject to loss if the business fails. Indebtedness secured by the assets of the business is not considered “at-risk” in this sense. “At-risk” funds include only funds in which personal assets are involved.
   Funds must be irrevocably committed.
   – Examples of irrevocably committed funds are funds held in escrow pending issuance of the visa and funds already paid for the purchase of the business.
   – Examples of funds which are not irrevocably committed are uncommitted funds in a bank account and prospective investment arrangements involving no present commitment.
   – To satisfy this requirement the applicant must provide documents which indicate that the applicant has already committed these funds to the business and that these funds are under his/her control.
   – Also, the investor must document the source of these funds (i.e. loan, sale of assets, bank account, etc.). Please provide documents tracing the flow of funds from their source to the business (example: canceled checks deposited in business checking account) and from the business to the investment (example: canceled checks showing purchase of buildings, land, equipment, etc.). Always provide loan and mortgage documents and note whether the loan is secured by the business.
4. Enterprise is a real and operating commercial enterprise.
   This means that speculative investments held for potential appreciation in value do not qualify. Non-profit organizations also do not qualify.
   Applicant must submit documents which show the business is actually operating (invoices, payroll, bill payments, tax returns).
5. Applicant’s investment is substantial. The determination whether an investment is substantial consists of the following:
   Application of the proportionality test.
   – The proportionality test is a comparison of the total cost of the enterprise (the purchase price of an existing business or the cost of making a newly-created business operational) and the amount of qualifying funds invested.
   – The lower the cost of the business, the higher the percentage of qualifying funds invested needed to qualify.
   – Determining whether the funds are sufficient to ensure the investor’s commitment to the successful operation of the enterprise and to its development and direction.
   – To satisfy this requirement, the applicant should submit documents indicating the purchase price of the business or, if a new business, the expenses necessary to make the business operational. The E-visa office will use these documents and the documents submitted regarding the actual investment to determine whether the business satisfies this requirement.
6. Investment is more than a marginal one solely for earning a living. The applicant can show that an investment is more than marginal in one of two ways.
   Submit documents showing that the income derived from the investment exceeds what is necessary to support self and family. Income tax forms from the business and/or income statements prepared by the accountant are welcomed.
   Failing this test, the applicant can show that the investment has the capacity, present or future, to make a significant economic contribution to the community. In this vein, submit documents that show the number of workers the business will employ, now and in the future.
7. Applicant is coming to the U.S. to “develop and direct” the enterprise.
   This can be fulfilled by providing a brief narrative showing that the applicant will be engaged in the day-to-day operations of the business.
8. The applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the U.S. To bring an employee into the U.S., the applicant must meet all of the following criteria:
   a. The prospective employer must meet the nationality requirements as described     above,
   b. The employer and employee must have the same nationality, and
   c. The employer, if not resident abroad, must be maintaining E-status in the U.S.
   An executive or supervisory position is one which entails a high degree of responsibility for the firm’s overall operations and the executive or supervisory element is the primary function of the job. In other words, please include a brief narrative which describes the job position, specifically addressing these issues, and which explains why the prospective employee is qualified for this job.
   An essential employee is one without whom the applicant would not be able to do business in the U.S. The burden of proof clearly lies with the applicant to prove that the prospective employee is essential. Again, the applicant should provide a brief narrative showing that the employee merits consideration as essential.
9. Applicant intends to depart the United States when the E-2 status terminates.
   The applicant must include a short statement to this effect.

Portions of this information were provided by the Department of State website (travel.state.gov)
Page Summary: Investors may enter the U.S. in the E nonimmigrant category.