E-1 Visa

Firstly, an E-1 visa is available only for nationals of a country with which the U.S. has established a treaty of commerce and navigation, and once approved, an E-1 visa holder is eligibility to enter the U.S. to conduct international trade on his or his company’s own behalf. In addition to the principal of the organization, key foreign national employees are also eligible for entry to work for the company in the U.S. The principal visa holder’s spouse and under 21 year old children are also eligible to enter the U.S. to accompany the principal temporary business visa holder.

For a list of countries with which the U.S. established a qualifying treaty of commerce and navigation – click here to see U.S. Department of State’s Treaty Countries.

There are two ways a foreign national can obtain E-1 visa status. If the individual is in the U.S. in valid nonimmigrant status, in most cases he/she may be eligible to file for a change of their status to E-1. However, although their change of status request may be approved, if the individual wishes to depart the U.S., he/she will need to apply for and be issued an actual E-1 visa at a U.S. consular post abroad to facilitate reentry into the U.S.

Alternatively, the foreign national may choose to straight away simply return to their home country to apply for their E-1 visa, especially if they know they will be needing to depart the U.S. frequently, or even once, in the near future.

To be approved for E-1 visa classification, the treaty trader must:

• Be a national of a country with which the United States established and continues to maintain a treaty of commerce and navigation,
• Carry on substantial trade
• Conduct trade mainly between the United States and the subject treaty country, through which the treaty trader qualifies for E-1 classification.

Trade is defined as exchange of items of trade for consideration in an international context, between the United States and the treaty country.  Examples of items of trade to form the basis of an E-1 visa application, includ:

• Goods
• Services
• International finance or banking
• Insurance products
• Transportation services or products
• Tourism in general
• Technology of all types, including technology transfer
• News-gathering activities.

For examples of qualifying trade beyond the above list, see 8 CFR 214.2(e)(9) and

https://fam.state.gov/fam/09FAM/09FAM040209.html

Additional definitions

Substantial trade is generally defined as a consistent and significant stream of commercial transactions taking place in an international context and with a varied class of items or services being transacted.   The governing requirements do not specify any minimum amount of trade or monetary value transacted to qualify, although monetary value as well as frequency of transactions are among the more important regulatory factors to be considered in assessing “substantiality”.     See 8 CFR 214.2(e)(10) for further details.   See this link https://www.nafsa.org/_/file/_/amresource/8cfr2142f.htm

Principal trade – qualifying principal trade is established when over 50% of the aggregate of the company’s international trade is between United States and the treaty country  See 8 CFR 214.2(e)(11).    https://www.nafsa.org/_/file/_/amresource/8cfr2142f.htm

Certain employees of approved treaty trader companies may qualify for an E-1 visa.   Requirements include:

• Having the same nationality of the treaty country at issue, i.e. same nationality as the principal E visa holder/employer
• Qualify as an “employee” as defined under applicable law,
• Carrying out executive or supervisory duties, or possess other special qualifications.

Executive or supervisory duties are defined as roles involving an employee exercising control and responsibility over a major aspect of the company’s operation, if not the general operation overall.   See 8 CFR 214.2(e)(17) for further specifics on this definition.

Special qualifications are defined as employee talents deemed integral to the company’s operational efficiency.

If the principal employer is a corporation, it must be at least 50% owned by persons in the U.S. who are a national of the treaty country, owners who are required to maintain their treaty trader E-1 visa status.

The maximum period of entry for approved treaty trader (including employees) visa holders is two years. For those not seeking to depart the U.S., 2 year extensions may be available and on an indefinite basis, although E-1 visa holders must ultimately have the intention to return to their home country upon status expiration or termination.     There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.  All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-1 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Spouses and unmarried, under 21 year old children of approved E-1 treaty traders (and employees) visa holders are eligible to accompany their principal family member to the U.S. and for the same period as the principal’s authorized stay. These spouses and children need not have the same nationality as their principal E-1 visa holder. Spouses of E-1 visa holders are eligible to apply for an employment authorization document, a document, which if issued, allows them to work without restriction in the U.S. for the authorized period.

As reflected above, there are indeed numerous avenues through which a foreign national can qualify for E-1 visa status. An important ingredient to the success of any E-1 visa application is a well thought out road map and careful attention to the details of all governing rules and regulations, which should always include a detailed business plan for the organization outlook for the near and immediate future. Each consular post will no doubt have their own idiosyncrasies with regard how they review an E-1 visa application and assess an applicant’s qualification. Thus, it is imperative that prospective applicants take into not only the rules that generally apply to E-1 visa applicants, but to the specifics noted on a U.S. Embassy or Consulate website with regard to adjudication of E-1 visa application adjudication.