TREATY TRADERS AND INVESTORS (E-1 and E-2)

GENERAL

These classifications are designated for temporary workers engaged in international trade or investment between the U.S. and their countries of nationality, provided that all of the following conditions are met:

• The employer or owner of the business is a national of a country that has a commercial treaty (Treaty of Friendship, Commerce, or Navigation, Bilateral Investment Treaty, or Free Trade Agreement) with the U.S.
• The E employee has the same nationality as the principal alien employer or, if the employer is a U.S. enterprise or organization, it is at least 50% owned by persons in the US having the nationality of the treaty country.
• The duties of the E employee are principally and primarily executive, supervisory, or otherwise essential to efficient operation of the US enterprise.

Most E classification adjudicating is done by consular officers at U.S. embassies abroad. USCIS has consolidated E petition adjudication’s for change of status, extension of stay, change of employer, etc. at its California and Texas Service Centers.

(E-1 TREATY TRADER, carries on substantial international trade in his/her personal capacity or as employee of a foreign person/organization engaged in trade principally between the U.S. and the home country.

(E-2) TREATY INVESTOR, must have invested, or be actively in the process of investing, a substantial amount capital in a bona fide enterprise that he/she will develop and direct in the U.S.

Dependents

The spouse and children of an E-1 or E-2 alien will be admitted under the same classification as the principal. Dependents are not required to have the same nationality as the treaty country. Under recent legislation, spouses of E-1 nonimmigrants are eligible to apply for blanket work authorization. In addition, E-2 spouses and children may study in E-2 status or apply for change of status to any classification for which they qualify.

Annual limit

There is no annual limit on admissions under the E-1 or E-2 classification.

Duration

E-1 or E-2 principals and dependents may be admitted for a maximum initial period of two years. Dependent status is not affected by temporary departures of the principal from the US. NOTE: Principals and dependents are not generally admitted for periods extending more than six months past the expiration dates of their passports. A treaty trader or investor maintains status only while engaged in the approved E activities or employment.

Extension of stay

Extensions may be granted for up to two years if the treaty alien has maintained status and was physically present in the US when the extension was filed. There is no specified number of extensions of stay that can be granted to an E alien. EXCEPTION: Treaty nationals associated with start up of new treaty entities are presumed to be able to accomplish this within two years and are ordinarily not eligible for extension.

Dual intent

Treaty traders and investors must maintain the intent to depart the U.S. upon expiration of their E status, but need not specify the duration. An application for initial E admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for labor certification or a filed or approved immigrant visa preference petition.

Change of Status

An alien present in the U.S. in another valid nonimmigrant status may change status to become a treaty trader or investor, if eligible. E employment may not commence until USCIS approves the application on Form I-129 (with E supplement). Dependents' changes of status will depend upon approval of principal's change of status.

Changes in E Employment

E nonimmigrants may change from one U.S. affiliate to another, provided that the affiliates were made known during the original adjudication or are subsequently approved. NOTE: Mergers or acquisitions of an E employing entity, or sale of a division of the entity to which the treaty trader or investor is assigned, may alter the employing entity's ownership so that it is no longer primarily owned by nationals of a treaty country and/or of the same nationality as an E employee. Where a substantive change affecting the structure or ownership of the E employer has taken place, the E employee must submit Form I-129 (with E supplement) to USCIS and be granted extension of stay under the changed conditions, or obtain a new consular visa reflecting the new terms and conditions of employment, in order to work for the new entity. Changes that would not affect the E alien's continued eligibility for E classification are non-substantive and need not be submitted to USCIS for approval. Even in such cases, especially where the employer has changed its name, E aliens may facilitate readmission to the U.S. by carrying an explanatory letter from the treaty-qualifying employer, filing an I-129 with request for a new I-797 Approval Notice, or applying to the State Department or consular office for a new visa reflecting the change.

Employer-Specific Work Authorization

An E-1 or E-2 alien is authorized to work only for the treaty enterprise and any parent company, subsidiaries, and/or other entities related to the treaty enterprise employer that were identified in the process of adjudicating E treaty status. All qualifying E positions must be managerial, supervisory, or require essential skills. For employment eligibility verification purposes, an E classification employee presents his or her unexpired passport with the Form I-94 Admission-Departure Record indicating unexpired E-1 or E-2 status.

NAFTA Restrictions

Citizens of Mexico or Canada may be denied treaty status if:

• the Labor Department identifies a strike in progress at the U.S. location where the individual would be employed or
• the individual's temporary admission would adversely affect settlement of a labor dispute or the employment of any person involved in the dispute.

NOTE:  Canadian or Mexican treaty employees already employed in E-1 or E-2 status are not affected.