The E-1 Treaty Trader Visa
The E-1 Treaty Trader visa category allows certain foreign nationals to work temporarily in the U.S. in order to carry on substantial trade, including trade in services or technology, between the United States and the foreign country of which they are a national. In many cases, an E-1 visa can be granted to an individual who is an employee of a treaty trader if he/she holds the same nationality as the foreign employer and seeks admission to the U.S. to engage in duties that require special qualifications (either executive, managerial, supervisory) essential to the operation of the enterprise.
E-1 visa holders are initially granted a period of admission for two (2) years with an unlimited number of two-year extensions of status. Spouses of E-1 visa holders are eligible for employment authorization.
Immigration Law Associates, PC prepares many E-1 visa applications on behalf of established foreign corporations seeking to bring essential executives and personnel to the U.S. In addition, our firm also helps foreign entrepreneurs comply with the immigration requirements necessary to establish a viable E-1 enterprise and apply for E-1 status.
E-1 Visa Eligibility
Nationality of the Treaty Trader: Whether an individual, business or employee of an individual or business, the Treaty Trader must be a national of a country with which the U.S. maintains a Treaty of Commerce and Navigation. Please click here to view the State Department's current list of Treaty Countries.
Nature of the Trade Undertaken:Even if the treaty exists with the United States, a foreign trader who seeks E-1 visa status must meet all of the following requirements:
- The trade must constitute an exchange. There must exist an actual exchange of qualifying commodities such as goods, monies, or services to constitute transactions to be considered "trade." An exchange of a good or service for consideration must flow between the two treaty countries and must be traceable or identifiable. Furthermore, title to the trade item must pass from one treaty party to another.
- The trade must be international in scope. The purpose of the established treaties is to develop international commercial trade between the foreign country and the United States. Thus, the traceable exchange in goods or services must be between the United States and the treaty country. Engaging in purely domestic trade is not allowable under the E-1 visa category. In addition, trade between the treaty country and the United States must already exist (evidenced by existing binding contracts).
- The trade must involve qualifying activities. For E-1 purposes, trade involves the commercial exchange of goods or services in the international market place. "Goods" is defined as "tangible commodities or merchandise having intrinsic value." "Services" is defined as "legitimate economic activities that provide other than tangible goods." Due to a rapidly changing business climate, many more services might benefit from E-1 classification. These include but are not limited to: international banking, insurance, monies, transportation, tourism, communications, data processing, advertising, account design and engineering, management consulting, technology and its transfer, and some news gathering activities.
Ownership of the Trading Business: The nationality of the company's stockholders is significant. At least 50% of the corresponding E-1 business must be owned by nationals of the Treaty Country. For instance, if a business owns another business, then the nationality of the business' ownership must be mapped back to the nationalities of the corporate shareholders. In addition, the country of incorporation is not important with regard to satisfying the shareholders' nationality requirements for the E-1 visa.
Qualifications and Activities of the Treaty Trader: In order to qualify for E-1 status, employees of an E-1 employer, whether or not the employer is an individual or foreign company, must be engaged in activities that are executive, managerial, or supervisory in character. If he or she is not so employed, he/she must possess special qualifications that will be rendered essential for the efficient operation of the business.
A person with an essential skill must possess "special qualifications." Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. The factors to be considered in determining whether an employee possesses "special expertise" that is "essential" to the firm's U.S. operations include such factors as the proven expertise, uniqueness of the specific skills, length of experience with the firm, the period of training, and the salary. In determining whether the applicant possesses special qualifications that are essential to the treaty enterprise, a USCIS officer must take into account all of the particular facts presented.
Where Should I File?
Filing for an E-1 visa abroad at a U.S. consulate results in a totally new and independent adjudication by the consular office. If the case has been previously approved by USCIS in the U.S., it must be reviewed and adjudicated again at the consulate. Moreover, the standards used by consular offices abroad are often more demanding and difficult to meet than the standards used by USCIS.
For this reason, a prospective treaty trader should consult with an attorney about the possibility of entering the U.S. in some other legitimate status (for example, B-1 business visitor and then changing status to E-1 after arrival. This process may be facilitated by using the USCIS's Premium Processing service, which requires an additional filing fee of $1,225. In return for the fee, the USCIS will guarantee processing of E-1 petitions within 15 calendar days of receipt. Applications filed at the same time by dependents of the person seeking E-1 status will also be processed within 15 calendar days. If the USCIS does not issue an approval, notice of intent to deny, request for evidence or notice of fraud investigation within 15 days, it will refund the $1,225 fee but will still expedite processing of the case.
Filing in the U.S. for change of status to E-1 may or may not be the best option for all potential treaty traders. If the foreign national wishes or needs to travel abroad during the duration of his E-1 status, it will be necessary for him to apply for a passport stamp in his country of origin before returning to the U.S. This will trigger a re-adjudication of his case, which may take weeks or months, and in some cases lead to a denial.