Treaty Trader (E-1), Treaty Investor (E-2), Australian Specialty Occupation Worker (E-3)

The E category includes treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which the treaty trader or investor is a citizen or national. This category also includes Australian specialty occupation workers.

  • Treaty traders carry on substantial trade in goods, including but not limited to services and technology, principally between the United States and the foreign country of which they are citizens or nationals.
  • Treaty investors direct the operations of an enterprise in which they have invested, or are actively investing, a substantial amount of money.
  • Australian specialty occupation workers perform services in a specialty occupation.

Treaty Traders (E-1) and Treaty Investors (E-2)

Before entering the United States, treaty traders or investors must apply and receive an E-1 or E-2 visa from a U.S. consulate or embassy overseas. However, a U.S. company may also request a change of status to E-1 or E-2 for a nonimmigrant who is already in the United States. USCIS processes change of status and extensions of stay requests for nonimmigrants whose companies have filed such petitions.

Australian Specialty Occupation Worker (E-3)

Before entering the United States, Australian specialty occupation workers must apply for and receive an E-3 visa from a U.S. consulate or embassy overseas. However, a U.S. company may also request a change of status to E-3 for a nonimmigrant who is already in the United States. USCIS processes change of status and extension of stay requests for nonimmigrants whose companies have filed such petitions.

For more information on treaty traders, treaty investors and Australian specialty workers:

  • Visit our Temporary Worker page
  • Call our Employer, Business, Investor and School Services (EBISS) information line at 1-800-357-2099.

Form I-9

Once USCIS approves the employee’s extension of stay, the employer will receive an approval notice, which includes the employee’s Form I-94 indicating the employee’s work authorized nonimmigrant status.  The employer should give the Form I-94/I-94A to the employee. In Section 1 of Form I-9, the employee in E status should check “An alien authorized to work” and write the Admission number and expiration date of his or her status as indicated on Form I-94 in the space provided. The employee’s unexpired Form I-94/I-94A together with his or her unexpired foreign passport are acceptable for Form I-9purposes as a List A document.  For completing Section 2 (or Section 3 if reverifiying), employers should follow the applicable instructions.

__________

E-1 Treaty Traders

The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on his or her own behalf.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-1 Treaty Traders and Employees” below.)

See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

Who May File for Change of Status to E-1 Classification

If the treaty trader is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-1 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

How to Obtain E-1 Classification if Outside the United States

A request for E-1 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-1 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-1 nonimmigrant.

General Qualifications of a Treaty Trader

To qualify for E-1 classification, the treaty trader must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Carry on substantial trade
  • Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade include but are not limited to:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Some news-gathering activities.

See 8 CFR 214.2(e)(9) for additional examples and discussion.

Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time.  There is no minimum requirement regarding the monetary value or volume of each transaction.  While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.  See 8 CFR 214.2(e)(10) for further details.

Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.  See 8 CFR 214.2(e)(11).

General Qualifications of the Employee of a Treaty Trader

To qualify for E-1 classification, the employee of a treaty trader must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under the relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty trader status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.  See 8 CFR 214.2(e)(3)(ii).

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  See 8 CFR 214.2(e)(18) for a more complete definition.

Period of Stay

Qualified treaty traders and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.  All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-1 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E-1 Status

A treaty trader or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-1 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E-1 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty trader or employee’s previously approved relationship with the organization.  The treaty trader or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty trader or affected employee.  The petition must include evidence to show that the treaty trader or affected employee continues to qualify for E-1 classification.

It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  A treaty trader or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty trader or organization must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-1 treaty trader status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty trader or employee’s ability to obtain E-1 status.  See 8 CFR 214.2(e)(22) for details.

Family of E-1 Treaty Traders and Employees

Treaty traders and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty trader or employee.  These family members may seek E-1 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and seeking change of status to or extension of stay in an E-1 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-1 spouse may work.

As discussed above, the E-1 treaty trader or employee may travel abroad and will generally be granted an automatic two-year period of admission when returning to the United States.  Unless the family members are accompanying the E-1 treaty trader or employee at the time the latter seeks admission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-1 status, and apply for an extension of stay before their own validity expires.

__________

E-2 Treaty Investors

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)

See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

Who May File for Change of Status to E-2 Classification

If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-2 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

How to Obtain E-2 Classification if Outside the United States

A request for E-2 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant.

General Qualifications of a Treaty Investor

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the United States solely to develop and direct the investment enterprise.  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.  The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.  See 8 CFR 214.2(e)(12) for more information.

A substantial amount of capital is:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.  It must meet applicable legal requirements for doing business within its jurisdiction.

Marginal Enterprises

The investment enterprise may not be marginal.  A marginal enterprise is one 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.  Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.  In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.  See 8 CFR 214.2(e)(15).

General Qualifications of the Employee of a Treaty Investor

To qualify for E-2 classification, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.  See 8 CFR 214.2(e)(3)(ii).
Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  See 8 CFR 214.2(e)(18) for a more complete definition.

Period of Stay

Qualified treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.  All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Terms and Conditions of E-2 Status

A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E-2 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.  The treaty investor or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee.  The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification.

It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  A treaty investor or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or organization must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-2 treaty investor status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status.  See 8 CFR 214.2(e)(22) for details.

Family of E-2 Treaty Investors and Employees

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-2 spouse may work.

As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States.  Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.

_____________

E-3 Certain Specialty Occupation Professionals from Australia

The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.

Eligibility Criteria

To qualify for an E-3 visa, you must demonstrate that you:

  • Are a national of Australia
  • Have a legitimate offer of employment in the United States
  • Possess the necessary academic or other qualifying credentials
  • Will fill a position that qualifies as a specialty occupation

Applying for an E-3 Visa from Within the United States

The Form I-129, Petition for Nonimmigrant Worker is used to apply for a change of status to obtain E-3 nonimmigrant temporary worker classification.

Supporting Documents

Your Form I-129 must include the following documents:

  • A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application.  Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA
  • Academic or other credentials demonstrating qualifications for the position
  • Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
  • If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation

Applying for a Visa With a U.S. Embassy or Consulate

If your petition Form I-129 is approved, we will forward a Form I-797, Notice of Action/Approval to the employer, who in turn will forward it to you. A Form I-797 approval notice is not a U.S. visa, as the visa must be obtained at a U.S. embassy or consulate abroad. After Form I-129 is approved by USCIS, the next step is to apply for a U.S. visa at a U.S. embassy or consulate, generally in your country of residence abroad. Please visit the Department of State, Travel.state.gov Temporary Workers webpage for visa information, how-to-apply procedures, and U.S. embassy web contact information to learn more.

Period of Stay/Extension of Stay

Initial Period of Stay

Extension of Stay

2 years Up to 2 years per extension; no maximum number of extensions, with some exceptions.

Change of Employment

Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less.

Note: Form I-129 is used to apply for an extension of stay or change of employment.

Family of E-3 Visa Holders

Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but not your children. To apply for work authorization as a spouse of an E-3 nonimmigrant, your spouse would file a Form I-765, Application for Employment Authorization. For more information on the application procedures, see the “Work Authorization” page.