For employers
E-1 Treaty Trader and E-2 Treaty Investor
The company's nationality drives eligibility, not just the employee's, which is why employers who would qualify often never look.
The threshold question is the company, not the person
E classification requires a qualifying treaty between the United States and the country of the enterprise's nationality, and the enterprise's nationality is determined by the nationality of the individuals or entities that own it, traced through to natural persons.
That is the analysis employers skip. A U.S.-incorporated company can hold treaty nationality, and a company that thinks of itself as domestic may qualify because of who owns it.
E-1 and E-2 ask different things
Requires substantial trade in goods, services, or technology, principally between the United States and the treaty country. Substantiality is assessed on the volume and continuity of transactions, not on a single large deal.
Requires an investment that is substantial relative to the cost of the enterprise, irrevocably committed and at risk, in a real and operating commercial enterprise that is more than marginal.
Employees of treaty companies
Where the enterprise qualifies, employees who share the treaty nationality may be classified as E where they will serve in an executive or supervisory capacity, or possess skills essential to the enterprise's operation. The essential-skills route is the more contested one, and it benefits from being documented in terms of the enterprise's needs rather than the employee's résumé.
Consular processing versus change of status
E classification is most often obtained at a U.S. consulate abroad, but can be processed as a change of status inside the United States with the U.S. Citizenship and Immigration Services for someone already here. The two routes produce different practical results. Most importantly, a change of status does not produce a visa, so any departure requires consular application before return.
For a company registering its first E case, the consular route also establishes the underlying company registration that later employee applications rely on. That sequencing is worth planning.
Renewals and the temporary intent question
E status is renewable indefinitely while the qualifying circumstances continue, and admissions are granted in periods that may differ from the visa validity. Like TN and H-1B1, E does not accommodate immigrant intent in the way H-1B and L-1 do; the requirement is an intention to depart when status ends. Plan any permanent residence path with that in view.
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Read more →Let's talk about your matter.
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