Visas Available For Qualified International Traders and Investors

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January 1, 2003
By: Frederic D. Van Arnam, Jr.

As part of its immigration policy, the U.S. Government provides the E class visa for a group of immigrants known as "Treaty Traders and Investors." Such visas are intended for aliens engaged in international trade or investment between the U.S. and their country. A treaty country is a foreign state with which the U.S. has entered into a Treaty of Friendship, Commerce or Navigation or its equivalent. Treaty countries may also include foreign states that are accorded such privileges as a result of specific legislation.

To qualify as a treaty trader, both the visa applicant, as well as the firm for which the applicant is entering the U.S., must be nationals of a treaty country. The applicant must enter the U.S. solely to engage in trade of a substantial nature principally between the U.S. and the alien's country. The trade involved must be an international exchange of goods, services, or technology between the U.S. and a treaty country, and title to the trade item must pass from one party to the other.

The INS requires individuals seeking this visa status to provide significant information in support of their application. Specifically, the applicant must state whether he/she is a national of a country with whom the U.S. has entered the requisite treaty; that the activity constitutes trade as defined by the applicable regulations; that the trade is of a substantial nature; and that the trade conducted by the alien is principally trade between the U.S. and the alien's country. The INS considers trade to be principally between the U.S. and a treaty country where over 50% of the volume of international trade conducted by the alien treaty trader is between the U.S. and his country.

In those situations where the applicant is not the principal trader, the alien must declare that he/she is employed in a supervisory or executive capacity, or possess special qualifications that make his/her services essential to the successful and efficient operation of the enterprise. The applicant must also state his/her intention to depart the U.S. upon the expiration of the visa; that he/she has the same nationality as the principal alien employer; and that the alien employer is an enterprise or organization at least 50% owned by a national of the treaty country.

Treaty investor visas are granted to nationals of a country with which the U.S. has a commercial treaty who are coming to the U.S. solely to direct and develop operations of an enterprise in which they have invested, or are actively in the process of investing, a substantial amount of capital. The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with risk with a profit objective, and be subject to loss if the investment fails.

As with visas for treaty traders, the INS requires applicants to provide detailed information in their petitions. Specifically, the investor must declare that he/she is a national of country with whom the U.S. has entered into a requisite treaty or agreement; that the alien will direct or develop the enterprise; that he/she controls the enterprise by showing ownership of at least 50% of the enterprise by possessing operational control through a managerial position or other corporate device or by other means; that he/she has invested in or is actively in the process of investing in the enterprise; that the investment is substantial; that the applicant intends to depart the U.S. upon the expiration of the visa; and that the investment enterprise is not a marginal enterprise.

In situations where the applicant is not the principal investor, he/she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify for such treatment.

Individuals interested in this type of visa should also be aware that spouses and unmarried children under the age of 21 may receive derivative visas for the purpose of accompanying the principal alien. However, dependants are not authorized to work in the U.S. Visa status under the treaty trader/investor provision may be maintained as long as the principal alien maintains its status with its enterprise or activity.