Treaty Investors
(Source: U.S. Department of State Bureau of Consular Affairs)

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Treaty Investors Overview

The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country, with which the United States maintains a treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital.

Treaty Investor Requirements

• 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 business 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 ualify. Uncommitted funds in a bank account or similar security are not considered an investment;
• The investment may not be marginal. It must generate significantly more income than just 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. Loans secured with the assets of the investment enterprise are not allowed; and
• The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

VISA Ineligibility / Waiver

The nonimmigrant visa application Form OF-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a treaty trader or treaty investor, may apply for a waiver of ineligibility and be issued a visa if the waiver request is approved.

How to Apply for the VISA

Applicants for visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.

Required Documentation

Each applicant for the visa must pay a nonrefundable US$20 application fee and submit:

1. An application Form OF-156, completed and signed. Blank forms are available without charge at all U.S. consular offices;
2. A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;
3. One photograph 1 and 1/2 inches square (37x37 mm) for each applicant, showing full face, without head covering, against a light background.

Optional Documentation

An applicant for a Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law. The consular officer will provide the applicant with special forms for this purpose. An applicant may also be asked to provide evidence which illustrates that the stay in the U.S. will be temporary. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

U.S. Port of Entry

Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Immigration and Naturalization Service (INS) has authority to deny admission. Also, the period for which the bearer of a treaty trader or investor visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. Those persons who wish to stay beyond the time indicated on their Form I-94 must contact the INS to request Form I-539, Application to Extend Status. The decision to grant or deny a request for extension of stay is made solely by the INS.

Additional Information

Family Members

Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal alien. Dependents are not authorized to work in the United States.

Time Limits

Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise.

Further Inquiries

Questions on qualifications for various classifications and visa application procedures should be made to the American consular office abroad where the applicant intends to apply. Questions on conditions and limitations on employment should be made to the local INS office.