Section 101(a)(15)(E) of the US Immigration and Nationality Act provides for visa status for nationals of countries that maintain an appropriate treaty of commerce and navigation with the United States or that is considered to be a treaty country under US law. The applicant must be coming to the United Sates to carry on substantial trade or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing, a substantial amount of capital. Australia was included as a country eligible for such status in December l991.

Treaty Trader and Investor visas are nonimmigrant categories. They do not confer permanent residence in the US nor do they lead to US citizenship, although they permit the applicant and qualified family members to live in the US for an extended period. For permanent residence in the United States, there is a separate program based on investment.

 To qualify as a Treaty Investor (E-2):

 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 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 qualify.

 The investment must not be marginal. It must generate significantly more income than needed 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. For the purpose of measuring the investment, loans secured with the assets of the investment enterprise are not counted.

 The investor must be coming to the US to develop and direct the enterprise. If applicants are not the principal investors, they must be employed as a supervisor, executive, or as the possessor of highly specialized skills.

QUESTIONS AND ANSWERS

Must the trading company exist and/or the investment have been made before the visa can be issued? Trade must already be established at the time of visa application. Investments, however, may be prospective, provided that the funds are irrevocably committed to the investment, contingent only upon the issuance of the visa. Investment funds may come from any country, including the United States, as long as they are controlled by the investor applicant.

What is substantial trade? Substantial trade contemplates a continuous flow of trade items between the US and the treaty country. this means numerous transactions rather than a single transaction regardless of monetary value.

What is a substantial amount of capital? There is no fixed amount which is considered "substantial." A substantial amount of capital constitutes that amount which is ample to ensure the investor’s financial commitment to the successful operation of the enterprise as measured by the proportionality test. The proportionality test compares the total amount invested in the enterprise with the cost of establishing a viable enterprise of the nature contemplated or the amount of capital needed to purchase an existing enterprise.

Such comparison constitutes the percentage of the treaty applicant’s investment in the enterprise. That percentage must compare favorably in the fashion of an inverted sliding scale starting with a high percentage of investment for a lower cost enterprise. The percentage of investment decreases at a gradual rate as the cost of the business increases. An amount of capital invested in an enterprise is merely presumed to be substantial when it meets or exceeds the percentage figures given in the following examples (amounts shown are in US dollars):

75% investment in an enterprise costing no more than $500,000 (if the cost of the enterprise is substantially lower than $500,000, 85-90%, or even 100% investment may be required).

50% investment in an enterprise costing more than $500,000 but no more than $3,000,000.

30% investment in any enterprise costing more than $3,000,000.

A multi-million dollar investment by a large foreign corporation is normally considered substantial, regardless of the examples given above.

The investment must do more than merely yield a return capable of supporting the investor and family. A marginal enterprise is an enterprise which does not have the capacity to generate significantly more than enough income to provide a living for the investor, family and other alien employees.

Are joint ventures permitted? Yes, provided that the business or individual investor applying for the visa is in a position to "develop and direct" the enterprise. The applicant is in such a position by controlling the enterprise through ownership of at least 50% of the business, possessing operational control through a marginal position or other corporate device, or by other means showing the applicant controls the enterprise.

How long may the Treaty Trader or Investor stay in the US? The applicant must have the intention of departing the US upon conclusion of the commercial activities. Nevertheless, holders of E-visas may reside in the US as long as they continue to meet E-visa qualifications.

"Essential employees" may remain only as long as their skills are required to operate the business, and only as long as the owner can show either that US workers cannot be trained to duplicate the skills or that the owner is making reasonable efforts to train US workers as replacements.

On initial entry, immigration officials normally authorize a stay of up to one year in the US, with extensions generally available for as long as the E-visa holder and family maintain their E-visa status.

Is a visa available to the applicant’s wife and children? Yes. Spouses and children under age 21 qualify for derivative E-visas based on the principal applicant’s qualification. It is not necessary that they hold the nationality of the principal applicant. However, when the surnames of a spouse or children (as appearing on their passports) differ from that of the principal applicant, copies of marriage certificates, birth certificates, or other legal documentation must be submitted to establish the relationship. De-facto spouses and fiance(e)s do not qualify for derivative status. Dependent E-visa holders are allowed to work in the United States.

Filing the I-129 Petition:

USCIS Form I-129 consists of a basic petition and different supplements that apply to the various visa categories. In order to petition for a temporary worker, the prospective employer or agent must file Form I-129, Petition for Nonimmigrant Worker, and the appropriate supplement with the U.S. Citizenship and Immigration Services (USCIS) accompanied by the required payment, and initial evidence or documentation.

Once the petition is approved, the employer or agent is sent a Notice of Approval, Form I-797. Approval of a petition does not guarantee visa issuance to an applicant. Applicants must also establish that they are admissible to the U.S. under provisions of the Immigration and Nationality Act (INA).

Applying for the Visa:

If the prospective worker (beneficiary) is outside of the country, he must apply for a visa. After the USCIS has approved the I-129 and sent notice to the consulate in the beneficiary’s country, the beneficiary must file a visa application with the consulate. Some aliens may be visa exempt. In those cases, the I-129 approval notice is sent to the port of entry (POE) where the beneficiary intends to apply for admission. For specific procedures on Visa Application Procedures, Required Documentation and Visa Ineligibility Waiver, please visit Visa Services at the Department of State.

If the beneficiary is already in the U.S. and is changing from one nonimmigrant status to another, a visa is not required. However, a visa may be required if the beneficiary subsequently leaves the U.S. and wishes to re-enter.

Entry into the U.S.

Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant who is inadmissible under INA, even if the applicant has a visa. Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

When to file:

Petitions should be filed as soon as possible, but no more than 6 months before the proposed employment will begin or the extension of stay is required. If the petition is not submitted at least 45 days before the employment will begin, petition processing and subsequent visa issuance may not be completed before the alien's services are required or previous employment authorization ends.

FEES

There are two parts to the non-immigrant visa fee: the application fee and the issuance fee.

Application Fee: All applicants, regardless of nationality and visa category, must pay a fee to process the application. This fee is non-refundable and is in addition to any other fees that apply. The fee must be paid at an Australia Post office, and you must attach the post office receipt to the application.

Issuance Fee: Issuance fees vary by nationality and visa category. The issuance fee is in addition to the application fee paid at Australia Post. The fee is payable to the "U.S. Consulate" as a bank cheque or money order. Personal or company cheques and credit cards are not accepted.

The following countries are eligible for both E-1 and E-2 visas unless indicated by an asterisk:

Argentina, Australia, Austria, Bangladesh**, Belgium, Bolivia*, Bosnia-Herzegovina, Brunei*, Bulgaria**, Cameroon**, Canada, Colombia, Congo**, Costa Rica, Coratia, Czechoslovakia**, Denmark*, Egypt**, Estonia*, Ethiopia, Finland, France, Germany, Greece*, Grenada**, Honduras, Iran, Ireland*, Israel*, Italy, Japan, Kazakstan**, Korea, Kyrgyzstan**, Latvia*, Liberia, Luxembourg, Mexico, Modova**, Morocco**, Netherlands, Norway, Oman, Pakistan, Panama**, Paraguay, Phillipines, Poland**, Romania**, Senegal**, Slovak Republic**, Slovenia, Spain, Sri Lanka**, Surinam, Sweden, Switzerland, Taiwan, Thailand, Togo, Tunisia**, Turkey, United Kingdom, Yugoslavia, Zaire**.

* indicates country is eligible only for E-1 visa.

** indicates country is eligible only for E-2 visa.