Law Blog

Work Visas: Traders (E-1)

E-1 Trader
Our office caters to foreigners seeking to invest and/or work in the US.  The following is an overview of the E-1 Treaty Trade Visa, including eligibility requirements and key features.

The E-1 classification is for foreigners who do not intend to immigrate permanently to the US but who wish to live here and engage in international trade.  The visa is available to both to individuals and companies.

Eligibility

I.  First, you have to be a citizen of a country that has an E-1 agreement with the US.  Here is a list of the E-1 and E-2 country participants: List of Treaty Countries.

II.  Second, you have to carry on trade between the US and your home country.  Trade items do not have to be goods.  “Trade” also includes services and other activities.  Here are just a few examples provided by the USCIS:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Some news-gathering activities.

See 8 CFR 214.2(e)(9) for additional examples and discussion.

III.  Third, you must carry on “substantial” trade.  To be substantial, the amount of trade should be sufficient to ensure a continuous flow of international trade between the US and your home country.  There is no minimum requirement regarding monetary value or volume of each transaction, but there should be numerous transactions over time.  As a guideline, think of the income generated through the trade being sufficient to support you and your family.

Qualifications for Employee of Treaty Trader Company

Recall that the E-1 Visa is available for both individuals and companies.  If a company is the applicant, then the employee that comes to the US must meet certain requirements.

  1. Have the same nationality as the employer;
  2. Be an “employee” as defined under relevant law; and
  3. Be an executive or have special qualifications essential to business operations.

Most E-1 employees come over as executives, but other employees may also be eligible if they have _

  1. proven expertise in the area of operations (Relevant Factor: Whether other employees possess the same skills)
  2. salary commensurate with the special skills (Relevant Factor: Whether the same skills and qualifications are readily available in the US)

As for the company itself, it should be at least 50% owned by individuals who are _

  1. the same nationality as the company; and
  2. themselves E-1 Visa holders or, if not living in the US, eligible for E-1 status.

See 8 CFR 214.2(e)(18) for more details.

Period of Stay

The initial stay under E-1 status is for two (2) years, generally.  And, you can apply for extensions, also for two (2) years, as many times as you want.

The E-1 program does not provide a path to permanent residence in the same way an L-1 Visa does.  However, you can extend your stay in the US indefinitely, as long as you continue the trade activities.

Just remember that your intention as an E-1 visa holder is to return to your home country when your trading business is complete.  Things can happen along the way that change your plans, such as meeting someone special and getting married.  Should your intentions change such that you wish to live permanently in the US, changing to a different status may be advisable.

Family Members

E-1 holders may be bring spouses and children under 21 years of age as dependents, even if they are not the same nationality.  The period of stay for dependents will generally be the same as for the principal.

Change of Status

In “real life” it is often important to clients to be able to apply for a new immigration status without having to go back to their home country and go through consular processing.  The ability to change status without leaving the US is available for E-1.  If you are already here in the US as a lawful nonimmigrant, you may file Form I-129 to request a change of status to E-1 classification.

Travel

You are able to freely leave and re-enter the US under an E-1 Visa.  In fact, each time you re-enter the US, you will generally be granted an automatic extension of two (2) years from the time of re-entry.  The same applies to your dependents, but only if they travel with you.

Both E-class visas (E-1 and E-2) are very good visas.  If you are lucky enough to hold a passport from a country that participates in the treaty, then you would be well advised to carefully consider the advantages of the E-1 program.  Anecdotally speaking, E visas are not insanely difficult to obtain nor to maintain.  By comparison, EB-5 visas are much more expensive to obtain, and L-1 visas are much harder to hold onto after the initial period of stay.

As always, this article is intended to help you focus your approach.  Meet with an experienced HLA attorney to go over your particular circumstances and map out a plan of action.

~ Jeff Harrington, Esq.