E-1 Visa Roadmap

The E-1 treaty trader classification is available to nationals of treaty countries coming to the U.S. solely to carry on trade of a substantial nature, including trade in goods, services, or technology, working either individually or as an employee of a foreign person or organization. The E-‑1 is for the engagement in trade that is international in scope and principally between the U.S. and the foreign country of which the applicant is a citizen.

E-1 classification is available not only to treaty traders but also to their employees. To qualify as an , the applicant must have the same nationality as the E-1 employer and enter the U.S. to primarily perform executive or managerial duties, or demonstrate specialized skills essential to the trader’s operations in the U.S.

E-1 Requirements

The treaty trader, whether an individual or a business entity, must possess the nationality of an E-‑1 treaty country and engage in trade between the U.S. and that 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 application. The E-‑1 treaty trader’s business must conduct over 50 percent of its international trade with the U.S. 

The definition of “trade” for E-1 classification is expansive, but it must include three main criteria:

  • Exchange – There must be an actual exchange of goods or services between the foreign treaty country and the S. The exchange must be documented and identifiable.

  • International – The trade must be international in scope and occur between the foreign treaty country and the S. 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 E-‑1 status.
  • Qualifying Activities – Trade involves the commercial exchange of goods or services between the foreign country and the S. Examples of trade of services for E-‑1 purposes include international banking, insurance, transportation, tourism, communications, newsgathering, consulting, advertising, accounting, design and engineering.

To qualify for E-1 status, the treaty trader must engage in substantial trade. Substantial trade is defined as:

  • A continuous flow of international trade between the S. and the treaty country.
  • Numerous transactions over A single transaction will not qualify.
  • If involved in a small business, the income from international transactions must be sufficient to support the treaty trader and his or her

The primary focus is less on the monetary value of trade than on its overall volume.

Documentation

Apart from proof of the individual applicant’s citizenship, the following evidence must be provided:

Evidence of Ownership and Nationality – Company formation documents as applicable, such as Articles of Incorporation or Organization, Operating Agreement, stock certificates and ledgers, share certificates, organizational chart displaying the entity’s ownership structure, reports from a Certified Public Accountant and copies of the biographic pages of the owners’ passports, along with the individual percentage of their ownership.

Evidence of the Foreign Company Operations – For example, financial statements for the past two years and tax returns for the past two years.

Evidence of Ongoing Substantial International Trade – This may include a combination of any of the following documents: purchase orders, warehouse or custom declarations, bills of lading, sales contracts or contracts for services, letters of credit, carrier inventories, trade brochures, insurance papers documenting commodities imported into the U.S., client lists, accounts receivable and accounts payable ledgers, financial statements, and copy of the business plan, along with any other documentation showing that the international trade is substantial and that 51 percent of the trade is carried out between the U.S. and the treaty country.

Applications for prospective E-1 employees should also contain an organizational chart showing the applicant’s managerial or executive position in the U.S., the applicant’s résumé and copies of relevant degrees or certifications.

Admission

An initial stay is granted for two years; after that, E-‑1 status can be extended in two-year increments for as long as the substantial international trade carries on. This could be for the rest of a person’s life so long as the trade they are engaged in continues to meet the requirements. Otherwise, once the trade terminates or ceases to meet the minimum requirements, the person must leave the U.S. unless another immigration option is available.

Family

The E-1 applicant’s spouse and unmarried children under the age of 21 are eligible to apply for spousal E-1S or dependent E-1Y status to accompany or join the E-1 principal in the U.S., even if they are not nationals of the treaty country. E-1 spouses and children may attend school part-time or full-time. E-1 spouses are automatically authorized to work , and any valid I-94 Arrival/Departure Record is considered proof of work authorization.

Strategies/Options

Nationality – A treaty trader must be a citizen of a qualifying treaty country. An individual who is a dual citizen of the U.S. and the relevant treaty country or even a permanent resident of the U.S. does not qualify for E status. Where the trader is not a sole proprietorship but a business entity, at least 50 percent of the business must be owned by citizens of the treaty country. The entity’s nationality is determined by adding the shares of the individual shareholders of the treaty country. Publicly traded companies can use the nationality of the country in which the firm’s stock is registered and traded on the stock exchange. Shares owned by U.S. dual citizens or permanent residents are not counted.

– E-1 treaty trader status is temporary in nature. A written statement expressing the applicant’s intent to return upon termination of E-1 status is usually sufficient.

Company Operations – The E-1 company must be a real, live operating entity with a physical office location, tax returns, and active employees. The company can be a sole proprietorship, a partnership, a joint venture, or a corporation. The company does not need to have a physical presence in the U.S. It can be based in the treaty country or any other country abroad.

Existing Trade – The trade must be ongoing and systematic. This means the trader must show past, present, and the potential for future trade. The trade can be in the form of goods or services. Even without a history of previous exchanges, binding contracts that call for the immediate exchange of items of trade may meet the requirement of existing trade, if accompanied by a strong business plan outlining how the trader intends to grow the trade between the treaty country and the U.S. upon granting of E-1 classification.

Employees – Qualifying employees of E-1 traders do not need any prior work experience with the trader. They must merely be able to demonstrate that their job duties will be managerial or executive, or that they possess skills essential to the success of the enterprise.

Company Registration – Company registration is an essential part of the E-1 visa process. For the individual to qualify for E-1 classification, the E-1 company must first meet all the criteria mentioned above and . Based on the specifics of the relevant treaty and guidance provided by the U.S. Department of State to its consular posts abroad, consulates may grant E-1 visas that are valid between three months to five years of a registration period. Once a company is registered, subsequent applications for additional E-1 visas can be significantly expedited and simplified.

Filing Process – The E-1 visa application can be submitted directly to the consulate in the applicant’s treaty country or an application for E-1 status can be filed at the USCIS Service Center within the U.S. if the applicant happens to already be in the U.S. in another nonimmigrant status. If filed at the service center, the E-1 status is only granted for two years. Should the E-1 trader decide to leave the U.S. during those two years, he or she must reapply for an E-1 visa at a consular post in their home country before they can reenter the U.S. Upon entering the U.S. with an E-1 visa, the applicant will be authorized to stay in the U.S. for two years at a time.

Legal and policy sources:

Immigration policies and regulations are complex and frequently subject to change. The information contained in this roadmap is intended to provide you with a general overview and may not address your particular circumstances and needs. Serotte Law will assist you with the application and documentation process and answer any questions you may have about the E‑1 classification. Request a consultation or give us a call at 888-875-8110.

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