The E-1 visa category allows a foreign businessperson from a country with whom the U.S. has a treaties of commerce, friendship, navigation and trade to come to the United States to carry on “substantial trade of goods or services in a capacity that is supervisory or executive or involves essential skills.” To find out whether your country is “treaty country” please click here.
The term “trade” means exchange, purchase, or sale of goods and/or services and technology. Service activities include but are not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer.
In order to qualify, the following requirements must be met:
- The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country. (At least 50 per cent of the ownership of the company must have the nationality of the treaty country)
- The international trade must be of “substantial” nature in the sense that there is a sizable and continuing volume of trade. There is no set minimum level of trade which is considered sufficient, but it must me an amount of trade sufficient to ensure a continuous flow of trade. This continuous flow contemplates numerous transactions over time and may not be based on a single transaction, no matter how protracted or monetarily valuable. Although there is no minimum requirement with respect to the monetary value or volume of each individual transaction, the lower the volume of trade; the less likely the trader is to qualify. In the case of smaller businesses, the income derived from numerous transactions which is sufficient to support the treaty trader and his or her family constitutes a favorable factor in determining substantial trade. Sources of proof include bills of lading, customer receipts, letters of credit, insurance papers documenting commodities imported, purchase orders, trade brochures, courier inventories, and sales contracts.
- The trade must be principally between the United States and the treaty country of which the applicant is a national. (More than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality.) 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 suffice.
- The applicant must be employed in a supervisory or executive capacity, or possess special qualifications essential to the efficient operation and success of the firm. Ordinary skilled or unskilled workers do not qualify.
An employee of a treaty trader with the same nationality as the principal foreign employer may also be classified as an E-1 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 his or her services essential to the efficient operation of the enterprise. With limited exceptions, it is presumed that employees of treaty enterprises with special qualification who are responsible for start-up operations should be able to complete their objectives within two years. Absent special circumstances, such employees will not be eligible to obtain an extension of stay.
In determining whether the skills possessed by the alien are essential to the operation of the employing treaty enterprise, USCIS will consider, when applicable:
- The degree of proven expertise of the alien in the area of the operations; whether others possess the applicant’s specific skill or knowledge; the length of the applicant’s experience and/or training with the treaty enterprise; the 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. Knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement.
- Whether the skills and qualifications are readily available in the United States. Skills that are essential to start up an enterprise may no longer be essential after the 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 product improvement, quality control, or the provision of services not yet generally available in the United States.
The length of stay under the E-1 visa categories is essentially open ended, as long as there is a need for the foreign national to direct and control the US enterprise with initial status of two (2) to five (5) years. Thereafter, the E visa holder has to show that the trade activity is continuous and ongoing. The consulate may grant treaty trader visas for up to five years, but even with a five year visa, the foreign national is only given treaty status upon entering the United States in two year increments.
Spouses and children
The spouse and unmarried children under 21 years of age are entitled to E classification. The spouse is entitled to work authorization, but not the children. To apply for work authorization as a spouse of an E-1 nonimmigrant, the spouse may file a Form I-765, Application for Employment Authorization.
Unlike the other non-immigrant work classifications, treaty trader or treaty investor status may be initiated either directly at an American Consulate outside of the United States or in the U.S. with the U.S. Citizenship and Immigration Services (CIS) if the individual is in legal status and the law permits a change in status. However, once the individual leaves the U.S., the individual must apply for an E-2 visa at an American Embassy or consulate.
For assistance with the preparation and filing, or extension of an individual or entity E-treaty application, please contact us. We understand the importance of successfully obtaining an E-1 visa and will help you navigate the process. E visas require a deliberate strategy, careful attention to detail, and strong communication. With these elements in place, the process is often easier and less stressful than many of our clients expect. Our office will review your business plans and operations to determine eligibility for an E visa and prepare all necessary applications, petitions and documentation to successfully apply for this visa category. Through our affiliates, we can also assist you with organizing and setting up your US business entity, negotiating for the purchase of a US company, and any other business transaction needs you may have.