E-1: Treaty Trader Visa Lawyers

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 What is an E-1 Visa?

The E-1 Treaty Trader non-immigrant visa category promotes trade and investments between the United States and countries with which the U.S. has a trade or investment treaty. The E-1 visa allows a citizen of a treaty country to be admitted to the United States to engage in international trade on their behalf or for a company.

In order to qualify for an E-1 visa, you must meet the following requirements:

  • There must be a treaty between the U.S. and your company’s nation
  • The majority of control or ownership of the company must be by nationals of that country
  • You must be a citizen of that country

Chances are pretty good that there will be a trade agreement between your company’s nation and the United States. The U.S. has treaties with more than 70 countries. These include countries from all parts of the globe: North America (Canada and Mexico); Central and South America (Argentina, Chile, Honduras, etc.); Europe (Belgium, Austria, Finland, Ireland, Germany, Spain, and more); Africa (e.g., Ethiopia); and Asia (Taiwan, South Korea, Japan, etc.)

An E-1 is a trade visa and is available to the citizens of countries that have “principal trade” with the U.S. and have signed a trade and investment treaty with the U.S. “Trade” is the international exchange of “items of trade” for consideration (money, usually) between the United States and the treaty country. Items of trade include but are not limited to:

  • Goods
  • Services
  • Tourism
  • Transportation
  • International banking
  • Insurance
  • Technology

“Principal trade” between the United States and the treaty country exists when more than 50% of the volume of international trade of the treaty trader is between the United States and the treaty country of the treaty trader’s nationality.

Who Is Eligible for an E-1 Visa?

To qualify for the E-1 visa, you must fulfill the following requirements:

  1. You must be a national of a country that maintains a treaty of navigation and commerce with the U.S.
  2. The trading firm for which you are coming to the U.S. must have the nationality of the treaty country
  3. The international trade between your home country and the U.S. must be “substantial”’ because there is a sizable and continuing trade volume. “Substantial trade” is not defined in the law, so it is determined on a case-by-case basis
  4. More than 50 percent of international trade must be between the U.S. and your home country. The trade could be in the form of physical movement of goods, transportation, or non-physical services, including banking and insurance, tourism, technology, and journalism
  5. You 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
  6. You must be prepared to provide evidence that you intend to return to your home country at the end of the visa period
  7. In lieu of the above, you may be the spouse or child of the main E-1 visa holder. (A child must be unmarried and under the age of 21)
  8. You need to agree to the fact that you have to depart the United States if your E-1 visa expires

Terms and Conditions of E-1 Status

A treaty trader or employee may only work in the activity they were approved for when the classification was granted. An E-1 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • The relationship between the organizations is well-established
  • The employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed

The United States Citizenship and Immigration Services (USCIS) must approve any substantive change in the terms or conditions of E-1 status. A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the noncitizen’s eligibility for E classification, such as, but not limited to

  • Merger with another company
  • Acquisition by, or of, another company
  • Sale of the division where the noncitizen is employed
  • Another event that affects the treaty trader or employee’s previously approved relationship with the treaty enterprise

Where there has been such a substantive change, the treaty trader or enterprise must notify USCIS if it wishes to continue to employ the noncitizen in E-1 status. The petition must include evidence to show that the treaty trader or affected employee continues to qualify for E-1 classification.

Documents Required for an E-1 Visa

To obtain an E-1 visa, in addition to the application forms, you will need to prepare and present the following:

  1. Your CV/resume
  2. Evidence of skill in the area of operation
  3. Evidence of employment in the field
  4. A statement detailing your job position and the nature of your work
  5. Documents to prove ongoing trade between your company and the U.S. Typically, this is proof of one year’s worth of trading activity
  6. Evidence that the business is real and legitimate (annual reports, news articles, etc.)
  7. An affidavit of intent to leave after your visa expires
  8. A copy of your U.S. visa and form I-94 (temporary visa form) if you are already in the U.S.
  9. A copy of your passport (should be valid 6 months beyond your stay)
  10. Color ID photograph showing your full face

How Long Can I Stay in the U.S. on an E-1 Visa?

The initial stay has a maximum of two years. If you maintain the qualifications for the visa, you may obtain an unlimited number of two-year extensions. So long as the trading is ongoing, you may remain in the U.S. for as long as needed. This is a very rare feature. It puts E-1 visas on nearly the same footing as permanent residence (green cards).

Can I Bring My Dependents on E-1 Visa?

Yes, you may bring your (1) spouse or (2) unmarried children under 21 years old on your E-1 visa. They can remain with you for as long as you maintain your visa. Their nationalities need not be the same as yours. Your spouse can work while they are on the E-1 visa. This is a significant and unusual benefit – few non-immigrant visas automatically grant a spouse the right to work.

You may also bring a personal employee, as long as you can demonstrate that they are not abandoning their residence abroad and have been working for you for at least one year.

Can I Apply for Permanent Residence (a “Green Card”) with an E-1 Visa?

One of the requirements of an E-1 visa is that the holder must swear they will return home after their visa expires. This is inconsistent with the desire to move permanently to the U.S. Therefore, going directly from an E-1 visa to permanent residence is very difficult.

The best idea is to change to a different visa that allows a foreigner to have dual intent – i.e., the desire to get a green card but, if that is not possible, the willingness to leave at the visa’s expiration. E-1 visa holders who wish to get a green card transfer to an H-1B visa, which (unlike the E-1) does allow a foreigner to possess dual intent. To get an H-1B visa, they must find a U.S. employer to sponsor them for the H-1B visa and, later, for permanent residence.

Alternative Visa Possibilities

People who are considering applying for a B-1 visa may also look into the following:

  • The E-2: Treaty Investor visa
  • The L-1: Intracompany Transferee visa
  • If you have $500,000 or more to invest, it may be worth considering going directly for the EB-5 Immigrant Investor Green Card
  • The EB-1 “Extraordinary Ability” visa
  • The EB-2 employment-based visa for persons of exceptional ability
  • The EB-3 visa for skilled professional workers

Should I See an Immigration Attorney When I Apply For an E-1 Visa?

The E-1 visa category is complex, and a mistake on the forms or in the accompanying documentation could result in a denial of the application. It would be very valuable to have the assistance of an experienced immigration attorney for help. Your attorney can analyze your eligibility for the E-1 visa and can assist with the application process.

In addition, as noted, several other visa possibilities might fit your case better. An attorney will explain your choices and guide you to the best option.

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