The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. For a list of Treaty Countries, click here.
Requirements: Treaty Trader
The applicant must be a national of a treaty country.
The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade.
The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality.
Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
Purpose of the E-1 Visa Classification
The E-1 visa classification allows an individual to enter the United States temporarily to engage in substantial trade.
Advantages of the E-1 Visa Classification
Application for an E-1 visa is made directly to a U.S. consulate. There is no need to submit a preliminary petition with U.S. Citizenship and Immigration Services (CIS).
There is no cap on E-1 visa extensions.
Disadvantages of the E-1 Visa Classification
E-1 Visa Treaty Traders may only engage in employment that is consistent with the terms and conditions of the activities forming the basis for their E-1 visa status.
There are strict requirements on the nationality of individuals and the level of trade necessary to qualify for E-1 visa status.
Under NAFTA arrangements, the usual documentary waiver provisions (such as the visa exemption) that normally apply to Canadians do not apply to the E-1 visa classification.
Family
Spouses and children under 21 may also receive E-1 visa status.
The nationality of a spouse or child of an E-1 visa treaty trader is not material in determining eligibility for E-1 visa status.
Spouses may obtain employment authorization.
Spouses and minor children can also attend school.
Points of Interest
Regulations require only that E-1 visa visitors intend to depart when their status terminates. E-1 visa visitors do not have to maintain a foreign residence that they have no intention of abandoning.
Dual Intent: An application for initial admission, change of status, or extension of stay in E-1 visa classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
Individuals may change to E-1 visa status or extend their E-1 visa status by filing the necessary documents with the appropriate U.S. Citizenship and Immigration Services (CIS) Service Center. However, most U.S. consuls will adjudicate the E-1 visa application without regard to CIS approval. The consular officers are much more familiar with the E-1 visa category. Therefore, the value of going through the CIS Service Center is debatable.
One interesting and little known feature of the E visa category is that an individual may be admitted with a two-year I-94 even though the visa may be valid for a lesser time. For example, a person with one week left on his E visa may still obtain a two-year I-94 upon entry to the U.S.
For Canadians, it is especially important to keep in mind that since they are NOT EXEMPT from applying for an E-1 visa, if they change status internally and depart, they will not be readmitted at the POE without first applying for the E-1 visa at a U.S. Consulate. This could be a costly inconvenience because it may delay their reentry by a month or longer.
1. Definition of E-1 Visa - Treaty Trader
The Immigration and Nationality Act (INA) and immigration regulations define an E-1 visa visitor as someone:
Entitled to enter the United States under the provisions of a treaty between the United States and the foreign state of which he or she is a national;
Coming to the U.S. solely to carry on trade of a substantial nature, including trade in services or trade in technology;
Working either individually or as an employee of a foreign person or organization;
Engaged in trade that is international in scope and principally between the United States and the foreign state of which he or she is a national; and
The individual intends to depart the United States upon the expiration or termination of E-1 visa treaty trader status.
2. Requirements for E-1 Visa
Trade with an Authorized E-1 Visa Treaty Country.
To qualify for E-1 visa status, the treaty trader must engage in trade between the U.S. and an Authorized E-1 Visa Treaty Country.
The trade must be based on an existing relationship involving the international exchange of items. For example, the parties have already entered into successfully negotiated contracts prior to the time of the E-1 visa application.
The E-visa treaty trader’s business must conduct over 50% of its international trade with the U.S. A common example of this scenario is where goods are manufactured in Canada and shipped to the U.S. facility for marketing and selling them in the U.S.
The remainder of the trade (which must constitute less than 50%) may be conducted as domestic or international trade with other countries. As long as more than 50% is conducted between the foreign country and the United States, the remainder is of no consequence with respect to E-1 visa eligibility.
Two categories available under the E-1 visa classification:
E-1 Visa Treaty Trader working individually on his or her own behalf; or
E-1 Visa Employee.
The definition of “trade” for E-1 visa requirements is expansive, but it must include three main criteria: Exchange, International and Qualifying Activities.
Exchange - There must be an actual exchange of goods or services between the foreign country and the United States. The exchange must be documented and identifiable.
International - The trade must be international in scope and occur between the foreign country and the United States. The purpose of trade agreements is to encourage trade between the two countries. Therefore, simply doing business in the U.S. without any activity or trade with the foreign country will not suffice for an E-1 visa.
Qualifying Activities - Trade involves the commercial exchange of goods or services between the foreign country and the United States. Examples of trade of services for E-1 visa purposes includes international banking, insurance, transportation, tourism, communications, newsgathering, consulting, advertising and accounting design and engineering.
Substantial Trade. In order to qualify for an E-1 visa, the treaty trader must engage in substantial trade. Substantial trade is defined as:
A continuous flow of international trade between the U.S. and the treaty country.
Numerous transactions over time. A single transaction will not qualify.
If involved in a small business, the income from international transactions must be sufficient enough to support the treaty trader and his or her family.
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.
