Several months ago I wrote that I would start offering up some options to the almighty H-1B specialty occupation visa because not every employer will be able to sponsor a foreign national in that category for any number of reasons, not the least of which is because many H-1B employment opportunities will be subject to an annual lottery and most private employers will not qualify as a “cap-exempt” employer. This is when employers (and their counsel) should be thinking about other options.
One option may be the “E” Treaty Trader / Investor visa. The Immigration and Nationality Act (“INA”) provides that an individual may enter the United States as an E nonimmigrant based upon a treaty of friendship, commerce and navigation, or a bilateral investment treaty or other arrangements between the United States and the country of which he is a national. A list of treaty countries may be found at www.travel.state.gov.
More specifically, an E nonimmigrant must be entering the United States either: (a) in the case of an E-1 treaty trader, solely to carry on substantial trade which is international in scope principally between U.S. and the country which he is a national; (b) in the case of an E-2 treaty investor, to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital in a bona fide enterprise; (c) in the case of an E-1 or E-2, as a key employee from a treaty country, including executives and supervisors or persons whose services are “essential to the efficient operation of the enterprise”; (d) as a principal employer, who is a person with the nationality of treaty country whether inside or outside U.S., or an enterprise or organization that is fifty percent (50%) or more owned by treaty nationals; or (e) a spouse or unmarried minor child of one of these individuals.
So, as an initial matter, a treaty of friendship, commerce and navigation, or a bilateral investment treaty or other arrangements must exist between the United States and the country of which the treaty trader or investor is a national. The foreign company, traders, or investors must have the same nationality of the treaty country. The principle trader or investor and employees of the treaty company must have the same nationality as the treaty company.
The nationality of the foreign company is determined by the nationality of the individual owners who own at least fifty percent (50%) of the stock of the company. The nationality of a publicly held corporation is presumed to be the country where its stock is initially listed and traded on a public stock exchange. The place of incorporation or principle place of business is irrelevant to the nationality requirement.
Under either category, the spouse and unmarried minor children accompanying or following to join an E-1 or E-2 principal treaty trader or investor may enter the United States in the same classification as their spouse or parent. (Importantly, the nationality of the spouse or child is not material to the classification of the spouse or child.) Once a child attains the age of twenty-one (21), or gets married, he is no longer eligible to remain in the U.S. in a derivative treaty status.
Also, the spouse of the E nonimmigrant treaty trader or investor may work in the U.S. provided they apply for an Employment Authorization Document (“EAD”) from U.S. Citizenship and Immigration Services (“USCIS”).
An E nonimmigrant may be initially admitted to the United States for two (2) years, and may apply for an extension of his nonimmigrant status in increments of two (2) years. Under current law, there is no limitation period for how long an individual may remain in the United States as an E-1 or E-2 nonimmigrant; that is, extensions of stay may be granted indefinitely as long as the foreign national affirms that he will leave the United States when his period of authorized stay ends.
There are many kinds of visas (either nonimmigrant, i.e., temporary, or immigrant, i.e., permanent) that allow people to come into the United States to work or do business (note that “working” and “doing business” are not necessarily the same thing). Many of these visas depend on an individual securing gainful employment with a company in the United States. However, the E Treaty Trader / Investor visa is available to nationals of certain countries who intend to contribute to the U.S. economy through either a substantial investment into a new or existing business that they intend to run themselves here, or because the “trader” will engage in substantial trade principally with the United States.
In a time when it feels like an H-1B visa may be more difficult to get than 50-yard line seats at the Super Bowl, the “E” Treaty Trader / Investor visa may be an option worth looking into.
 With careful planning on the front end and continued monitoring over time, it may also be possible for a treaty investor, who because of the large amount of capital required to qualify for the EB-5 Immigrant Investor classification, many to initially pursue an E-2 nonimmigrant visa and then reinvest his or her earnings in the enterprise over time until the investment in the enterprises reaches the required EB-5 capital threshold (on or after November 21, 2019, $1.8M or $900K for a target employment area).
 Trade include(s) but (is) not limited to goods, services, international banking, insurance monies, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities.