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Abstract
This Article examines the extent to which US immigration law complies with the United States’ treaty obligations to admit qualifying foreign nationals as treaty traders (E-1) or treaty investors (E-2). These immigration categories are grounded in international agreements—specifically Friendship, Commerce and Navigation treaties (FCNs), Bilateral Investment Treaties (BITs), and Free Trade Agreements (FTAs)—that commit the United States to grant entry to certain foreign individuals and enterprises for the purposes of trade or investment. Although each treaty includes specifically tailored terms and conditions, US immigration regulations apply a single, harmonized set of regulations that often diverge from the treaty texts. This Article documents how US regulatory practice has largely ignored the heterogeneity of treaty obligations, instead adopting uniform domestic rules that fail to reflect the specific commitments undertaken in individual treaties. The Article analyzes three key dimensions of visa eligibility—qualifying individuals or enterprises, qualifying trade or investment, and qualifying employees—and compares the US regulatory criteria against the treaty terms, identifying a long list of potential treaty violations. By demonstrating that US immigration law in some instances narrows, expands, or otherwise misapplies treaty-based requirements, the Article concludes that the United States is not in full compliance with its binding international obligations. It calls for a more differentiated regulatory approach that accurately incorporates the substantive content of each treaty, thereby restoring consistency between US domestic practice and international legal commitments. And it cautions that there are enforcement options available for these treaty violations.
Recommended Citation
William T. Worster,
Questioning US Immigration Law Compliance with Treaties
for Trade and Investment,
50 Brook. J. Int'l L.
1
(2025).
Available at:
https://brooklynworks.brooklaw.edu/bjil/vol50/iss2/1