Do you own your own business and wish to move to the United States? Consider the E-1 Treaty Trader or E-2 Treaty Investor Visas

The E-1 Treaty Trader and E-2 Treaty Investor visas are available to citizens from certain countries, including the UK and Ireland, who wish to do business in the United States. These visas are particularly attractive to self-employed individuals as they allow business owners to set up their own business in the US and essentially sponsor their own visas. They may also offer an alternative to the popular L-1 Intracompany Transferee or H-1B Specialty Occupation visas.

Both the E-1 and E-2 visas require that a treaty of commerce and navigation exist between the United States and the country of citizenship of the business owner. Countries that have these treaties with the US are called “treaty countries,” and a list of these can be found on the US Department of State’s website. Individuals who are British or Irish and plan to establish a US business that they will own and control may be able to apply for these visas because Ireland and the United Kingdom are both treaty countries.

The E-1 Treaty Trader visa can be useful for individuals who own a non-US business that already has clients in the United States. Companies that conduct the majority of their international business with US clients may benefit from this visa. Generally the requirements for an E-1 visa are:

• A treaty of navigation and commerce exists between the United States and the foreign country where the applicant is a citizen (the treaty country);
• The company applying for E status is owned and controlled by an individual from the same treaty country;
• The company applying for E status is engaged in on-going substantial international trade, meaning the exchange of goods and services internationally;
• The company’s non-domestic trade is principally between the treaty country and the United States; and
• The applicant intends to depart the United States when their E status terminates.

For those individuals who own companies that do not currently have any US clients but who wish to open a business in the United States and invest in its development, the E-2 Treaty Investor visa may be more appropriate. Generally the requirements for the E-2 visa are:

• A treaty of navigation and commerce exists between the United States and the foreign country where the applicant is a citizen (the treaty country);
• The company applying for E status is ultimately owned and controlled by individuals from the same treaty country;
• The investor has invested a substantial amount of money into the set up or purchase of a US enterprise, meaning that money has been spent in establishing and growing the US business, simply having the funds available in a bank account is not sufficient;
• The US business is a real and ready to operate commercial enterprise by the time the principal applicant receives their visa;
• The investment into the US business is more than a marginal investment solely for the principal applicant to earn a living, and the US business has the present or future capacity to provide more than a basic living wage for the investor and their family;
• The investor is in a position to develop and direct the US business; and
• The applicant intends to depart the United States when their E status terminates.

An E-1 or E-2 visa may also be used for transferring employees from abroad to work in the United States. After a business is registered with a US Embassy abroad and the principal applicant has obtained an E visa, employees of the company who are citizens of the respective treaty country may also apply for E visas if they will perform a managerial or essentially skilled role in the United States. This can be a useful alternative to the L-1 Intracompany Transferee visa for a business wishing to bring foreign employees to the United States.

This is posting is for informational purposes and is not intended as legal advice. If you require further assistance or advice relating to the above, please contact our Senior Associate Lawyer, Catherine Betancourt at catherine@flynnhodkinson.com.