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(E-1)Treaty
Trader and (E-2) Treaty Investor 8 C.F.R. § 214.2(e) (1) Treaty trader. An alien, if otherwise admissible, may
be classified as a nonimmigrant treaty trader (E-1) under the provisions of
section 101(a)(15)(E)(i) of the Act if the alien: (i) Will be in the United States
solely to carry on trade of a substantial nature, which is international in
scope, either on the alien's behalf or as an employee of a foreign person or
organization engaged in trade principally between the United States and the
treaty country of which the alien is a national, taking into consideration any
conditions in the country of which the alien is a national which may affect the
alien's ability to carry on such substantial trade; and (ii) Intends to depart the United
States upon the expiration or termination of treaty trader (E-1) status. (2) Treaty
investor. An alien, if otherwise admissible, may be classified as a nonimmigrant
treaty investor (E-2) under the provision of section 101(a)(15)(E)(ii) of the
Act if the alien: (i) Has invested or is actively in
the process of investing a substantial amount of capital in a bona fide
enterprise in the United States, as distinct from a relatively small amount of
capital in a marginal enterprise solely for the purpose of earning a living; (ii) Is seeking entry solely to
develop and direct the enterprise; and (iii) Intends to depart the United
States upon the expiration or termination of treaty investor (E-2) status. (3)
Employee of treaty trader or treaty investor. An alien employee of a treaty
trader, if otherwise admissible, may be classified as E-1, and an alien employee
of a treaty investor, if otherwise admissible, may be classified as E-2 if the
employee is in or is coming to the United States to engage in duties of an
executive or supervisory character, or, if employed in a lesser capacity, the
employee has special qualifications that make the alien's services essential to
the efficient operation of the enterprise. The employee must have the same
nationality as the principal alien employer. In addition, the employee must
intend to depart the United States upon the expiration or termination of E-1 or
E-2 status. The principal alien employer must be: (i) A person in the United States
having the nationality of the treaty country and maintaining nonimmigrant treaty
trader or treaty investor status or, if not in the United States, would be
classifiable as a treaty trader or treaty investor; or (ii) An enterprise or organization
at least 50 percent owned by persons in the United States having the nationality
of the treaty country and maintaining nonimmigrant treaty trader or treaty
investor status or who, if not in the United States, would be classifiable as
treaty traders or treaty investors. (4) Spouse
and children of treaty trader or treaty investor. The spouse and child of a
treaty trader or treaty investor accompanying or following to join the principal
alien, if otherwise admissible, may receive the same classification as the
principal alien. The nationality of a spouse or child of a treaty trader or
treaty investor is not material to the classification of the spouse or child
under the provisions of section 101 (a)(15)(E) of the Act. (5) Nonimmigrant intent. An alien classified under
section 101(a)(15)(E) of the Act shall maintain an intention to depart the
United States upon the expiration or termination of E-1 or E-2 status. However,
an application for initial admission, change of status, or extension of stay in
E classification may not be denied solely on the basis of an approved request
for permanent labor certification or a filed or approved immigrant visa
preference petition. (6) Treaty country. A treaty country is, for purposes
of this section, a foreign state with which a qualifying Treaty of Friendship,
Commerce, or Navigation or its equivalent exists with the United States. A
treaty country includes a foreign state that is accorded treaty visa privileges
under section 101(a)(15)(E) of the Act by specific legislation. (7) Treaty country nationality. The nationality of an
individual treaty trader or treaty investor is determined by the authorities of
the foreign state of which the alien is a national. In the case of an enterprise
or organization, ownership must be traced as best as is practicable to the
individuals who are ultimately its owners. (8) Terms and conditions of E treaty status (i) Limitations on employment.
The Service determines the terms and conditions of E treaty status at the time
of admission or approval of a request to change nonimmigrant status to E
classification. A treaty trader, treaty investor, or treaty employee may engage
only in employment which is consistent with the terms and conditions of his or
her status and the activity forming the basis for the E treaty status. (ii) Subsidiary employment. Treaty
employees may perform work for the parent treaty organization or enterprise, or
any subsidiary of the parent organization or enterprise. Performing work for
subsidiaries of a common parent enterprise or organization will not be deemed to
constitute a substantive change in the terms and conditions of the underlying E
treaty employment if, at the time the E treaty status was determined, the
applicant presented evidence establishing: (A) The enterprise or
organization, and any subsidiaries thereof, where the work will be performed;
the requisite parent‑subsidiary relationship; and that the subsidiary
independently qualifies as a treaty organization or enterprise under this
paragraph;
(B) In the case of an employee of a treaty trader or treaty investor, the work
to be performed
requires executive, supervisory, or essential skills; and (C) The work is consistent with
the terms and conditions of the activity forming the basis of the
classification. (iii) Substantive changes. Prior
Service approval must be obtained where there will be a substantive change in
the terms or conditions of E status. In such cases, a treaty alien must file a
new application on Form I-129 and E supplement, in accordance with the
instructions on that form, requesting extension of stay in the United States. In
support of an alien's Form I-129 application, the treaty alien must submit
evidence of continued eligibility for E classification in the new capacity.
Alternatively, the alien must obtain from a consular officer a visa reflecting
the new terms and conditions and subsequently apply for admission at a port of
entry. The Service will deem there to have been a substantive change
necessitating the filing of a new Form I-129 application in cases where there
has been a fundamental change in the employing entity's basic characteristics,
such as a merger, acquisition, or sale of the division where the alien is
employed. (iv) Non-substantive changes.
Prior approval is not required, and there is no need to file a new Form I-129,
if there is no substantive, or fundamental, change in the terms or conditions of
the alien's employment which would affect the alien's eligibility for E
classification. Further, prior approval is not required if corporate changes
occur which do not affect the previously approved employment relationship, or
are otherwise non-substantive. To facilitate admission, the alien may: (A) Present a letter from the
treaty-qualifying company through which the alien attained E classification
explaining the nature of the change; (B) Request a new Form I-797,
Approval Notice, reflecting the non-substantive change by filing with the
appropriate Service Center Form I-129, with fee, and a complete description of
the change, or; (C) Apply directly to State for a
new E visa reflecting the change. An alien who does not elect one of the three
options contained in paragraph (e)(8)(iv) (A) through (C) of this section, is
not precluded from demonstrating to the satisfaction of die immigration officer
at the port of entry in some other manner, his or her admissibility under
section 101(a)(15)(E) of the Act. (v) Advice. To ascertain whether a
change is substantive, an alien may file with the Service Center Form I-129,
with fee, and, a complete description of the change, to request appropriate
advice. In cases involving multiple employees, an alien may request that a
Service Center determine if a merger or other corporate restructuring requires
the filing of separate applications by filing a single Form I-129, with fee, and
attaching a list of the related receipt numbers for the employees involved and
an explanation of the change or changes. Where employees are located within
multiple jurisdictions, such a request for advice must be filed with the Service
Center in Lincoln, Nebraska. (vi) Approval. If an application
to change the terms and conditions of E status or employment is approved, the
Service shall notify the applicant on Form I-797. An extension of stay in
nonimmigrant E classification may be granted for the validity of the approved
application. The alien is not authorized to begin the new employment until the
application is approved. Employment is authorized only for the period of time
the alien remains in the United States. If the alien subsequently departs from
the United States, readmission in E classification may be authorized where the
alien presents his or her un-expired E visa together with the Form I-797,
Approval Notice, indicating Service approval of a change of employer or of a
change in the substantive terms or conditions of treaty status or employment in
E classification, or, in accordance with 22 CFR 41.112(d), where the alien is
applying for readmission after an absence not, exceeding 30 days solely in
contiguous territory. (vii) An unauthorized change of
employment to a new employer will constitute a failure to maintain status within
the meaning of section 237(a)(1)(C)(i) of the Act. In all cases where the treaty
employee will be providing services to a subsidiary under this paragraph, the
subsidiary is required to comply with the terms of 8 CFR part 274a. (9)
Trade definitions. For purposes of this paragraph: Items of trade include but
are not limited to goods, services, international banking, insurance, monies,
transportation, communications, data processing, advertising, accounting, design
and engineering, management consulting, tourism, technology and its transfer,
and some news‑gathering activities. For purposes of this paragraph, goods
are tangible commodities or merchandise having extrinsic value. Further, as used
in this paragraph, services are legitimate economic activities which provide
other than tangible goods. Trade is the existing
international exchange of items of trade for consideration between the United
States and the treaty country. Existing trade includes successfully negotiated
contracts binding upon the parties which call for the immediate exchange of
items of trade. Domestic trade or the development of domestic markets without
international exchange does not constitute trade for purposes of section
101(a)(15)(E) of the Act. This exchange must be traceable and identifiable.
Title to the trade item must pass from one treaty party to the other. (10) Substantial trade. Substantial trade is an amount of
trade sufficient to ensure a continuous flow of international trade items
between the United States and the treaty country. This continuous flow
contemplates numerous transactions over time. Treaty trader status may not be
established or maintained on the basis of a single transaction, regardless of
how protracted or monetarily valuable the transaction. Although the monetary
value of the trade item being exchanged is a relevant consideration, greater
weight will be given to more numerous exchanges of larger value. There is no
minimum requirement with respect to the monetary value or volume of each
individual transaction. In the case of smaller businesses, an income derived
from the value of numerous transactions which is sufficient to support the
treaty trader and his or her family constitutes a favorable factor in assessing
the existence of substantial trade. (11) Principal trade. Principal trade between the
United States and the treaty country exists when over 50 percent of the volume
of international trade of the treaty trader is conducted between the United
States and the treaty country of the treaty trader's nationality. (12) Investment. An investment is the treaty
investor's placing of capital, including funds and other assets (which have not
been obtained, directly or indirectly, through criminal activity), at risk in
the commercial sense with the objective of generating a profit. The treaty
investor must be in possession of and have control over the capital invested or
being invested. The capital must be subject to partial or total loss if
investment fortunes reverse. Such investment capital must be the investor's
unsecured personal business capital or capital secured by personal assets.
Capital in the process of being invested or that has been invested must be
irrevocably committed to the enterprise. The alien has the burden of
establishing such irrevocable commitment. The alien may use any legal mechanism
available, such as the placement of invested funds in escrow pending admission
in, or approval of, E classification, that would not only irrevocably commit
funds to the enterprise, but might also extend personal liability protection to
the treaty investor in the event the application for E classification is denied. (13) Bona fide enterprise. The enterprise must be a
real, active, and operating commercial or entrepreneurial undertaking which
produces services or goods for profit. The enterprise must meet applicable legal
requirements for doing business in the particular jurisdiction in the United
States. (14) Substantial amount of capital. A substantial
amount of capital constitutes an amount which is: (i) Substantial in relationship to
the total cost of either purchasing an established enterprise or creating the
type of enterprise under consideration; (ii) Sufficient to ensure the
treaty investor's financial commitment to the successful operation of the
enterprise; and
(iii) Of a magnitude to support the likelihood that the treaty investor will
successfully develop and direct (15) Marginal enterprise. For purposes of this
section, an enterprise may not be marginal. A marginal enterprise is an
enterprise that does not have the present or future capacity to generate more
than enough income to provide a minimal living for the treaty investor and his
or her family. An enterprise that does not have the capacity to generate such
income, but that has a present or future capacity to make a significant economic
contribution is not a marginal enterprise. The projected future income-generating
capacity should generally be realizable within 5 years from the date the alien
commences the normal business activity of the enterprise. (16) Solely to develop and direct. An alien seeking
classification as a treaty investor (or, in the case of an employee of a treaty
investor, the owner of the treaty enterprise) must demonstrate that he or she
does or will develop and direct the investment enterprise. Such an applicant
must establish that he or she controls the enterprise by demonstrating ownership
of at least 50 percent of the enterprise, by possessing operational control
through a managerial position or other corporate device, or by other means. (17) Executive and supervisory character. The
applicant's position must be principally and primarily, as opposed to
incidentally or collaterally, executive or supervisory in nature. Executive and
supervisory duties are those which‑provide the employee ultimate control
and responsibility for the enterprise's overall operation or a major component
thereof. In determining whether the applicant has established possession of the
requisite control and responsibility, a Service officer shall consider, where
applicable: (i) That an executive position is
one which provides the employee with great authority to determine the policy of,
and the direction for, the enterprise; (ii) That a position primarily of
supervisory character provides the employee supervisory responsibility for a
significant proportion of an enterprise's operations and does not generally
involve the direct supervision of low-level employees, and; (iii) Whether the applicant
possesses executive and supervisory skills and experience; a salary and position
title commensurate with executive or supervisory employment; recognition or
indicia of the position as one of authority and responsibility in the overall
organizational structure; responsibility for making discretionary decisions,
setting policies, directing and managing business operations, supervising other
professional and supervisory personnel; and that, if the position requires some
routine work usually performed by a staff employee, such functions may only be
of an incidental nature. (18) Special qualifications. Special qualifications
are those skills and/or aptitudes that an employee in a lesser capacity brings
to a position or role that are essential to the successful or efficient
operation of the treaty enterprise. In determining whether the skills possessed
by the alien are essential to the operation of the employing treaty enterprise,
a Service officer must consider, where applicable: (i) The degree of proven expertise
of the alien in the area of operations involved; whether others possess the
applicant's specific skill or aptitude; the length of the applicant's experience
and/or training with the treaty enterprise; the period of training or other
experience necessary to perform effectively the projected duties; the
relationship of the skill or knowledge to the enterprise's specific processes or
applications, and the salary the special qualifications can command; that
knowledge of a foreign language and culture does not, by itself, meet the
special qualifications requirement, and; (ii) Whether the skills and
qualifications are readily available in the United States. In all cases, in
determining whether the applicant possesses special qualifications which are
essential to the treaty enterprise, a Service officer must take into account all
the particular facts presented. A skill that is essential at one point in time
may become commonplace at a later date. Skills that are needed to start up an
enterprise may no longer be essential after initial operations are complete and
running smoothly. Some skills are essential only in the short-term for the
training of locally hired employees. Under certain circumstances, an applicant
may be able to establish his or her essentiality to the treaty enterprise for a
longer period of time, such as, in connection with activities in the areas of
product improvement, quality control, or the provision of a service not yet
generally available in the United States. Where the treaty enterprise's need for
the applicant's special qualifications, and therefore, the applicant's
essentiality, is time-limited, Service officers may request that the applicant
provide evidence of the period for which skills will be needed and a reasonable
projected date for completion of start-up or replacement of the essential
skilled workers. (19) Period of admission. Periods of admission are as
follows: (i) A treaty trader or treaty
investor may be admitted for an initial period of not more than 2 years. (ii) The spouse and minor children
accompanying or following to join a treaty trader or treaty investor shall be
admitted for the period during which the principal alien is in valid treaty
trader or investor status. The temporary departure from the United States of the
principal trader or investor shall not affect the derivative status of the
dependent spouse and minor unmarried children, provided the familial
relationship continues to exist and the principal remains eligible for admission
as an E nonimmigrant to perform the activity. (iii) Unless otherwise provided
for in this chapter, an alien shall not be admitted in E classification for a
period of time extending more than 6 months beyond the expiration date of the
alien's passport. (20) Extensions of stay. Requests for extensions of
stay may be granted in increments of not more than 2 years. A treaty trader or
treaty investor in valid E status may apply for an extension of stay by filing
an application for extension of stay on Form I-129 and E Supplement, with
required accompanying documents, in accordance with § 214.1 and the
instructions on that form. (i) For purposes of eligibility
for an extension of stay, the alien must prove that he or she: (A) Has at all times maintained
the terms and conditions of his or her E nonimmigrant classification; (B) Was physically present in the
United States at the time of filing the application for extension of stay; and (C) Has not abandoned his or her
extension request. (ii) With limited exceptions, it
is presumed that employees of treaty enterprises with special qualifications who
are responsible for start-up operations should be able to complete their
objectives within 2 years. Absent special circumstances, therefore, such
employees will not be eligible to obtain an extension of stay. (iii) Subject to paragraph (e)(5)
of this section and the presumption noted in paragraph (e)(22)(ii) of this
section, there is no specified number of extensions of stay that a treaty trader
or treaty investor may be granted. (21) Change of non-immigrant status. (i) An alien in
another valid nonimmigrant status may apply for change of status to E
classification by filing an application for change of status on Form I-129 and E
Supplement, with required accompanying documents establishing eligibility for a
change of status and E classification, in accordance with 8 CFR part 248 and the
instructions on Form I-129 and E Supplement (ii) The spouse or minor children
of an applicant seeking a change of status to that of treaty trader or treaty
investor alien shall file concurrent applications for change of status to
derivative treaty classification on the appropriate Service .form. Applications
for derivative treaty status shall: (A) Be approved only if the
principal treaty alien is granted treaty alien status and continues to maintain
that status; (B) Be approved for the period of
admission authorized in paragraph (e)(20) of this section. [ 8 C.F.R. §
214.2(e)(22)] (22) Denial of treaty trader or treaty investor status to
citizens of Canada or Mexico in the case of certain labor disputes. (i) A citizen of Canada or Mexico
may be denied E treaty trader or treaty investor status as described in section
101(a)(15)(E) of the Act and section B of Annex 1603 of the NAFTA if (A) The Secretary of Labor
certifies to or otherwise informs the Commissioner that a strike or other labor
dispute involving a work stoppage of workers in the alien's occupational
classification is in progress at the place where the alien is or intends to be
employed; and (B) Temporary entry of that alien
may adversely affect either: (1 ) The settlement of any labor
dispute that is in progress at the place or intended place of employment, or (2) The employment of any person
who is involved in such dispute. (ii) If the alien has already
commenced employment in the United States and is participating in a strike or
other labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been certified by the Secretary of Labor, or
whether the Service has been otherwise informed that such a strike or labor
dispute is in progress, the alien shall not be deemed to be failing to maintain
his or her status solely on account of past, present, or future participation in
a strike or other labor dispute involving a work stoppage of workers, but is
subject to the following terms and conditions: (A) The alien shall all
applicable provisions of the Immigration and Nationality Act, and regulations
promulgated in the same manner as all other E non-immigrants; and (B) The status and authorized
period of stay of such an alien is not modified or extended in any way by virtue
of his or her participation in a strike or other labor dispute involving a work
stoppage of workers. (iii) Although participation by an
E nonimmigrant alien in a strike or other labor dispute involving a work
stoppage of workers will not constitute a ground for deportation, any alien who
violates his or her status or who remains in the United States after his or her
authorized period of stay has expired will be subject to deportation. (iv) If there is a strike or other
labor dispute involving a work stoppage of workers in progress, but such strike
or other labor dispute is not certified under paragraph (e)(22)(i) of this
section, or the Service has not otherwise been informed by the Secretary that
such a strike or labor dispute is in progress, the Commissioner shall not deny
entry to an applicant for E status. |
