Treaty trader & investor visa

Treaty Trader & Treaty Investor Visas (E-1 E-2 visa)

Will you be working in the United States? If so, please review the online pamphlet regarding your rights as an employee

Update (effective immediately): All applicants from NSW, QLD, ACT and Norfolk Island:

Treaty Trader and Investor visa (E visa) applicants must first obtain an appointment for interview via Visapoint and then bring all of their supporting documentation to the interview. The package should not be mailed to Consulate General Sydney in advance of the interview.

Important Note for Applicants from VIC, SA, TAS and the NT:

In General

Section 101(a)(15)(E) of the U.S. Immigration and Nationality Act provides for visa status for nationals of countries that maintain an appropriate treaty of commerce and navigation with the United States or that are considered to be a treaty country under U.S. law. The applicant must be coming to the United States to carry on substantial trade or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing, a substantial amount of capital. Australia was included as a country eligible for such status in December l991.

Treaty Trader and Investor visas are non-immigrant categories. They do not confer permanent residence in the U.S. nor do they lead to U.S. citizenship, although they permit the applicant and qualified family members to live in the U.S. for an extended period. For permanent residence in the United States, there is a separate program based on investment.

To qualify as a Treaty Trader (E-1):

The firm in the U.S. must have the nationality of a treaty country.
The applicant must be a national of the treaty country.
The international trade must be “substantial”; there must be a sizable and continuing volume of trade.
The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50% of the firm’s international trade involved must be between the U.S. and the country of the applicant’s nationality.
Trade means the international exchange of goods, money, services, or technology. Title of items must pass from one party to another.
The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the operation of the firm.

The term “trade” is defined to include commercial in goods and trade in services and technology. This includes banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, technology transfer, and other measurable services which can be traded.

To qualify as a Treaty Investor (E-2):

The investor (either a real or corporate person) must be a national of a treaty country.
The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost enterprise must be higher than the percentage of investment in a high-cost enterprise.
The investment must be a real operating enterprise. Speculative or idle investment does not qualify.
The investment must not be marginal. It must generate significantly more income than needed to provide a living to the investor and family, or it must have a significant economic impact in the United States.
The investor must have control of the funds, and the investment must be at risk in the commercial sense. For the purpose of measuring the investment, loans secured with the assets of the investment enterprise are not counted.
The investor must be coming to the U.S. to develop and direct the enterprise. If applicants are not the principal investors, they must be employed as a supervisor, executive, or as the possessor of highly specialized skills.

Frequently Asked Questions

Must the trading company exist and/or the investment have been made before the visa can be issued?

Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, contingent only upon the issuance of the visa. Investment funds may come from any country, including the United States, as long as they are controlled by the investor applicant.

What is substantial trade?

Substantial trade contemplates a continuous flow of trade items between the U.S. and the treaty country. This means numerous transactions rather than a single transaction regardless of monetary value.

What is a substantial amount of capital?

There is no fixed amount which is considered “substantial.” A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test. The proportionality test compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.

Such comparison constitutes the percentage of the treaty applicant’s investment in the enterprise. That percentage must compare favorably in the fashion of an inverted sliding scale starting with a high percentage of investment for a lower cost enterprise. The percentage of investment decreases at a gradual rate as the cost of the business increases. An amount of capital invested in an enterprise is merely presumed to be substantial when it meets or exceeds the percentage figures given in the following examples (amounts shown are in U.S. dollars):

75% investment in an enterprise costing no more than $500,000 (if the cost of the enterprise is substantially lower than $500,000, 85-90%, or even 100% investment may be required).
50% investment in an enterprise costing more than $500,000 but no more than $3,000,000.
30% investment in any enterprise costing more than $3,000,000.

A multi-million dollar investment by a large foreign corporation is normally considered substantial, regardless of the examples given above.

The investment must do more than merely yield a return capable of supporting the investor and family. A marginal enterprise is an enterprise which does not have the capacity to generate significantly more than enough income to provide a living for the investor, family and other alien employees.

Are joint ventures permitted?

Yes, provided that the business or individual investor applying for the visa is in a position to “develop and direct” the enterprise. The applicant is in such a position by controlling the enterprise through ownership of at least 50% of the business, possessing operational control through a marginal position or other corporate device, or by other means showing the applicant controls the enterprise.

How long may the Treaty Trader or Investor stay in the U.S.?

The applicant must have the intention of departing the U.S. upon conclusion of the commercial activities. Nevertheless, holders of E-visas may reside in the U.S. as long as they continue to meet E-visa qualifications.

“Essential employees” may remain only as long as their skills are required to operate the business, and only as long as the owner can show either that U.S. workers cannot be trained to duplicate the skills or that the owner is making reasonable efforts to train U.S. workers as replacements.

For Australians, the E-visa normally is valid for 24 months for treaty traders and qualifying employees, but can be valid for 48 months for the principal investor and family. On initial entry, immigration officials normally authorize a stay of up to one year in the U.S., with extensions generally available for as long as the E-visa holder and family maintain their E-visa status.

Is a visa available to the applicant’s spouse and children?

Yes. Spouses and children under the age of 21 may qualify for derivative E-visas based on the principal applicant's qualification. It is not necessary that they hold the nationality of the principal applicant. However, when the surnames of a spouse or children (as appearing on their passports) differ from that of the principal applicant, copies of marriage certificates, birth certificates, or other legal documentation must be submitted to establish the relationship. De-facto spouses and fiance(e)s do not qualify for derivative status.

Dependent E-visa holders are permitted to work in the United States. To work, they must apply for employment authorization via the U.S. Citizenship and Immigration Services, this may only be done after their arrival in the United States.

Applying for the Visa

See Applying for a Non-Immigrant Visa for instructions on how and where to submit your application.

Applicant and family members who wish to obtain derivative visas must submit the following:

To complete your online visa application, you will need a digital photo. Please read carefully the requirements to upload your photo and the photo specifications before you begin completing your application. If you do not have a digital photo or you fail to upload your photo correctly, you may send a photo meeting these requirements along with your passport. Further details of photo requirements.
Complete the Electronic Visa Application Form DS-160 online and print out the confirmation page with the barcode.
Supporting documents to establish entitlement to the visa;
Receipt of payment of a non-refundable application fee, paid at Australia Post (see fee info below);
Payment of visa fee, if applicable (see fee info below);
Other documents relevant to the case — such as marriage and birth certificates of applicants applying as family members of the principal applicant.
A self-addressed Express Post Platinum envelope, Registered Post envelope or courier satchel for the return of your documents.
For E1 visa applicants only: Application Form DS-156E: Completed E-visa questionnaire Form DS-156E, (download below);

If applicants are employees of a company already approved for treaty trader or investor status, they and their family members should submit to the Consulate having jurisdiction over their residence:

To complete your online visa application, you will need a digital photo. Please read carefully the requirements to upload your photo and the photo specifications before you begin completing your application. If you do not have a digital photo or you fail to upload your photo correctly, you may send a photo meeting these requirements along with your passport. Further details of photo requirements.
Complete the Electronic Visa Application Form DS-160 online and print out the confirmation page with the barcode.
Employment Letter outlining:
- name and address of the firm where the applicant will work in the U.S.;
- title of the applicant’s position;
- complete position description;
- salary of the applicant, including value of benefits;
- qualifications required for the position and the extent to which the applicant meets those qualifications;
- number of recipients of E-1 or E-2 visas from the same firm who are still in the U.S.;
- number of U.S. nationals employed by the firm;
- names of any E-visa holders the employer is replacing;
- organization chart in the U.S. indicating applicant’s position and lines of authority;
- applicant’s curriculum vitae or resume.
Receipt of payment of non-refundable application fee, paid at Australia Post (see fee info below);
Payment of visa fee, if applicable (see fee info below);
Other documents relevant to the case — such as copies of marriage and birth certificates for family members of the principal applicant.
A self-addressed Express Post Platinum envelope, Registered Post envelope or courier satchel for the return of your documents.

For Residents of NSW, QLD, ACT, Norfolk Island, VIC, SA, NT and TAS:

Treaty Trader and Investor visa (E visa) applicants must first obtain an appointment for interview via Visapoint and then bring all their supporting documentation to the interview. The package should not be mailed in to Consulate General in advance of the interview.

Fees

There are two parts to the non-immigrant visa fee: the application fee and the issuance fee.

Fee information.

Additional Information

It is important that sufficient time be allowed to process applications. Applications and documents for Treaty Trader and Investor visas require careful review. In most cases a decision will be reached within four weeks, but irrevocable business plans and travel arrangements should not be made until visas are actually issued.

Because the nature of the Treaty Trader and Investor visa is complex and specific to the particular application, we will not discuss prospective E-visa situations over the telephone, nor respond to speculative questions on E-visa situations over the telephone or by mail.

The following countries are eligible for both E-1 and E-2 visas unless indicated by an asterisk:

Argentina, Australia, Austria, Bangladesh**, Belgium, Bolivia*, Bosnia-Herzegovina, Brunei*, Bulgaria**, Cameroon**, Canada, Colombia, Congo**, Costa Rica, Coratia, Czechoslovakia**, Denmark*, Egypt**, Estonia*, Ethiopia, Finland, France, Germany, Greece*, Grenada**, Honduras, Iran, Ireland*, Israel*, Italy, Japan, Kazakstan**, Korea, Kyrgyzstan**, Latvia*, Liberia, Luxembourg, Mexico, Modova**, Morocco**, Netherlands, Norway, Oman, Pakistan, Panama**, Paraguay, Phillipines, Poland**, Romania**, Senegal**, Slovak Republic**, Slovenia, Spain, Sri Lanka**, Surinam, Sweden, Switzerland, Taiwan, Thailand, Togo, Tunisia**, Turkey, United Kingdom, Yugoslavia.

* indicates country is eligible only for E-1 visa
** indicates country is eligible only for E-2 visa

Application Forms

For E1 applications: Download Treaty Trader/Investor Application Form DS-156E

Further Information

Please see our telephone information page for general advice on visas (charges apply).

Last update: Friday, 30 October 2009 GMT+1100

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