As an initial matter, a treaty of friendship, commerce and navigation, or a Bilateral Investment Treaty or other arrangement, 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.
- E-1 Classification – Special Requirements for Treaty TradersThe foreign company must engage in substantial trade principally with the United States. 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.”
Trade is measured by the volume and the number of transactions and it must be continuous. There is no minimum requirement with respect to the monetary value or volume of each individual transaction. In the case of smaller businesses, an income derived from the value of numerous transactions which is sufficient to support the treaty trader and his family constitutes a favorable factor in assessing the existence of substantial trade. Principle trade between the United States and the treaty country exists when over fifty percent (50%) of the international trade conducted by the treaty trader is between the United States and the treaty country of which the treaty trader is a national.
- E-2 Classification – Special Requirements for Treaty InvestorsBoth the principle treaty investor and his employee can obtain E-2 nonimmigrant status. The principle treaty investor must demonstrate that he does or will develop and direct the investment enterprise. A prospective E-2 nonimmigrant must establish that he controls the enterprise by demonstrating ownership of at least fifty percent (50%) of the enterprise, by possessing operational control through a managerial position or other corporate device, or by other means. The employee of the principle treaty investor should perform supervisory or executive duties, or work in a lesser capacity which is essential to the operation of the enterprise.An investment is the placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if the treaty trader’s investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise.
The investment should be sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise, and of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. There is no minimum dollar amount necessary in order for the investment to be considered substantial.
The enterprise must be a real, active, and an operating commercial or entrepreneurial undertaking which provides services or goods for profit. The enterprise also must meet all applicable legal requirements for doing business in the particular jurisdiction in the United States. The enterprise must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his family. The projected future income-generating capacity or job-creating capacity should be realizable within five (5) years from the date the foreign national commences the normal business activity of the enterprise.
If a foreign national investor does not qualify as the principal investor for reasons such as lack of control of the investing enterprise, then he may seek E-2 nonimmigrant status as the employee of the investing company.