E-1 treaty trader visas may be obtained for a manager or highly skilled employee who intends to do substantial trade with the United States. The foreign company for which the applicant works for must have a commercial treaty with the United States and the employee must intend to leave when the visa expires. To qualify, the treaty trader must demonstrate “substantial and principal trade” with the United States. Substantial means a frequent flow of trade and does not have minimum monetary requirements. Principal means at least 50 percent of trade abroad is or will be with the United States. The E-1 visa lasts for two years but can be renewed every two years for an indefinite period of time. Spouses and children are eligible for E-1 status also if E-1 status is granted to the applicant.
The E-1 visa is a treaty trader nonimmigrant visa that allows foreign nationals to be admitted to the United States to engage in international trade on their own behalf. The E-1 visa is a nonimmigrant visa, meaning the applicant must have the intent to leave the U.S. upon the expiration or termination of the visa. This visa is issued to nationals from countries that have entered into Commercial and Navigation Treaties with the U.S. Nationals from the countries listed on the Travel Department’s website [https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html] are eligible to apply for the E-1 if they meet the other qualifications as well.
The E-1 visa is available to foreign nationals who are citizens of, or members of trading firms that are from countries that have entered into a commerce and navigation treaty with the U.S. The foreign trader must meet the following requirements to qualify for the E-1 visa:
– The trader must be a national of a treaty country;
– The activities conducted by the trader in the U.S. must constitute trade as defined by the Immigration and Naturalization Act (the “INA”);
– The trade must be substantial;
– The trade must be principally between the U.S. and the treaty country;
– If the applicant is an employee of a trading firm, the applicant is either employed in a supervisory or executive capacity or possesses skills that are essential to the firm’s operations in the U.S.
As with most nonimmigrant visas, the E-1 applicant must show that they intend to depart the U.S.
he term “trade” is defined by the INA as “the existing international exchange of items of trade for consideration between the U.S. and the treaty country.” Items of trade may include goods, services, international banking, transportation, communications, data processing, advertising, accounting, and more.
“Goods” are defined as “tangible commodities or merchandise having extrinsic value.” “Services” have been defined in the regulations as “legitimate economic activities which provide other than tangible goods.”
The particular trade upon which the applicant is relying for the E-1 visa must already be in existence at the time of the petition. As such, the applicant should evidence of existing contracts to show that the visa was not sought for the purposes of searching for a trading relationship.
If the trade is a service, USCIS requires the applicant show that providing the intended service is the purpose of the business and that the service itself is a “saleable” commodity that the business sells to clients.
The requirement that the trade must be principally between the U.S. and the treaty country means that more than 50% of the total international trade is between the U.S. and the treaty country.
Put simply, substantial trade is an amount that ensures a continuous flow of international trade between the U.S. and the treaty country. As such, the petition cannot be based on a single transaction regardless of the value of that transaction.
Evidence of substantial trade includes:
– Bills of landing;
– Customer receipts;
– Letters of credit;
– Insurance papers documenting imported commodities;
– Purchase orders;
– Carrier inventories;
– Trade brochures;
– Sales contracts
Both the E-1 and E-2 visa allow admission to the U.S. for up to two years with the option to extend status in two-year increments.
An E-1 visa holder may also have foreign employees come to the U.S. for the purpose of working with the treaty trader. However, the treaty trader may not bring just any employee. First and foremost, the employee must be the same nationality as the treaty trader. Additionally, the employee must serve in either an executive or supervisory capacity, or possess special qualifications and be considered an essential employee.
To qualify as an employee serving in an executive or supervisory capacity, the proffered position must be directly supervisory or executive. The duties of the proffered position must also grant the employee with ultimate control over the commercial enterprise’s overall operation or a major component of its operation.
In determining if an employee is essential, USCIS will consider the need for the employee; the employee’s degree or proven expertise in a particular area of operations; the uniqueness of the specific skills possessed by the employee; the function of the proffered job; the salary that the special expertise can command; and the availability of U.S. workers who possess the required skills. Although the employee’s skills do not need to be unique, they must be crucial to the success of the commercial enterprise.
E-1 visa holders may also bring dependents to the U.S. for the duration of their status. Qualifying family members are spouses and unmarried children under 21 years of age. These family members may receive a derivative E visa which lasts for the duration of the E-1 visa holder’s status. A spouse of an E-1 visa holder is eligible to apply for work authorization. There are no restrictions on where a spouse may work. Although the qualifying children of an E-1 visa holder cannot apply for work authorization, they may attend school in the U.S., including college and higher education, without changing to F-1 status. Unlike the employees of the E-1 investor, qualifying family members do not need to be of a particular nationality.
The processing time for an E-1 visa depends on where the petition is being processed. Applicants currently present in the U.S. should submit their applications and supporting documentation to USCIS. Applicants outside of the U.S. should submit their applications and supporting documentation at the closest U.S. consulate. Overall, adjudication of E-2 visas submitted to USCIS by applicants lawfully present in the U.S. takes about three to six months.
E-1 visa holders are free to travel in and out of the U.S.
We emphasize on clear communication and a personal approach. Our clients work directly with an attorney from the initial consultation through the resolution of the case. We are quick to respond to client needs, available to answer your questions and intent on keeping you informed of the status of your case.
Few areas of law impact the long-term future of individuals and businesses as much as immigration law. The attorneys at C.T. Lee & Associates understand this, which is why we carefully analyze every client’s needs before developing a strategy that is designed to achieve each client’s goals as effectively and cost-efficiently as possible. See below for our list of services within immigration.
BUSINESS AND EMPLOYMENT-BASED IMMIGRATION – L-1 VISAS – O-1 VISAS – H-1B VISAS – EB-1 EXTRAORDINARY ABILITY GREEN CARDS – EB-2 EXCEPTIONAL ABILITY GREEN CARDS – EB-3 SKILLED AND UNSKILLED GREEN CARDS – EB-5 INVESTOR/EMPLOYMENT CREATION VISA – E VISAS (TRADER, INVESTOR, SPECIALITY OCCUPATIONS) – FAMILY-BASED IMMIGRATION – GREEN CARDS – VISITORS AND STUDENTS – P-1 & P-4 VISAS – U VISA – SPECIAL IMMIGRANT JUVENILE STATUS
