The United States has signed Treaties of Commerce and Navigation with a host of foreign countries. Please refer to the List of Treaty Countries for more information on which countries have treaties with the United States [see article]. Aliens who are from a treaty country and who meet the requirements set forth in statutes and regulations are eligible for E-category visas. The E1 visa is available for treaty traders and the E2 category is available for treaty investors. The E3 category is available to Australian specialty occupation workers and has similar requirements to the H1B category.
Treaty traders (E1 visas)
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. 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 certain news-gathering activities. Treaty traders and their qualified employees may only work in the activity for which the classification was approved, with narrow exceptions existing for work for a parent or a subsidiary company. Should there occur a substantive change in the terms or conditions of the treaty trader's employment, the United States Citizenship and Immigration Services (USCIS) must be notified by the filing of a new classification application with fees.
Treaty investors (E2 visas)
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.
Australian specialty occupation workers (E3 visas)
The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. E3 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 there must exist a marriage certificate for a spouse to accompany an E3 specialty occupation worker. The definition of “specialty occupation,” found in section 214(i) of the Immigration and Nationality Act (INA), states that the occupation require:
- A theoretical and practical application of a body of specialized knowledge; and
- 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.
Please see our article regarding the specialty occupation degree requirement in the H1B context to learn more [see article]. If an employer is unsure if the position is a “specialty occupation,” it should consult with an experienced immigration attorney.
How to petition
Treaty traders and treaty investors may petition for a visa on their own behalf. They may also petition for a spouse, unmarried children under the age of 21, and certain employees. An E1 or E2 employee must have the same country of citizenship as the employer, and must 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 E1 category if the 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 United States under these 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 [see article] to E1 or E2 [see article on this issue for dual nationals]. Alternatively, an applicant may complete all paperwork abroad and then apply for a visa at a U.S. port of entry. E1 or E2 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 visas expire or are terminated for any reason. Any person on E status must carefully follow the rules of E status and be aware of the period of time the E visa remains valid.
Unlike the qualified employees themselves, the family members do not have to be nationals of a treaty country. E1 and E2 family members may work in the United States without restriction after applying for and obtaining an Employment Authorization Document (but may not work until obtaining such documentation).