A business may operate in the United States under the E-2 treaty investor classification after making a qualifying investment. As part of normal operations, the business may sell goods or services to customers outside the United States, including customers in the owner’s treaty country. When cross-border transactions become a regular and significant part of how the business operates, questions may arise because U.S. immigration classifications are defined by the primary activity of the business.
Under U.S. immigration law, there is no concept of “upgrading” from E-2 treaty investor to E-1 treaty trader. These are separate non-immigrant classifications, each governed by its own legal standard. Approval under one classification does not convert into approval under the other.
E-2 treaty investor classification
E-2 treaty investor classification is built around the idea of committing capital to a U.S. business and actively operating it. Immigration authorities look first at whether the investment is real, substantial, and tied to a functioning enterprise rather than a passive holding. The investor must have ownership or operational control and must be involved in directing the business on an ongoing basis.
The business itself must be more than marginal. This means it must have the capacity to operate as a genuine commercial enterprise, not one created only to support the investor. How the business earns revenue may vary. Some E-2 businesses serve only U.S. customers, while others sell goods or services internationally. Export activity is permitted, but it does not define the classification.
E-1 treaty trader classification
E-1 treaty trader classification is centered on trade as the defining business activity. The key question is whether the enterprise is already engaged in ongoing trade between the United States and the treaty country. For this purpose, trade includes goods, services, and technology, and it must occur with regularity rather than as isolated transactions.
Immigration authorities assess whether this trade represents the core function of the business. A required element is that more than half of the company’s international trade takes place between the United States and the treaty country. While an E-1 business may involve investment, capital alone does not establish eligibility. The focus remains on the established pattern of cross-border transactions and the applicant’s role in carrying out or directing that trade.
Can an E-2 visa holder move to E-1 status?
E-1 treaty trader status requires that the business already meets specific trade-based legal requirements. Simply increasing exports or adding cross-border transactions doesn’t automatically create E-1 eligibility. The business must satisfy the substantive definition of treaty trading for that classification.
International sales are permitted under E-2, and a business may continue operating under E-2 as long as it remains compliant with investor-based rules. E-1 becomes relevant only if the business’s existing operations satisfy the legal standard for treaty trading.
Where E-1 eligibility exists, the visa holder may apply for that classification through a new filing and a new review. Where it does not, the business remains properly classified under E-2, even if cross-border trade is a significant part of its activity.
Sources:
- USCIS. https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors
- USCIS. https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-1-treaty-traders
- U.S. Department of State. https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visas.html
- U.S. Department of State – Foreign Affairs Manual (FAM). https://fam.state.gov/FAM/09FAM/09FAM040209.html