The E-visa allows a national of a treaty country (a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US for the purpose of international trade on his or her own behalf. Certain employees of an E-1 visa holder or a qualifying organization may also be eligible for this classification.
Filing for E-1 Classification
If the treaty trader is currently in the US in a lawful nonimmigrant status, he or she may file to request a change of status to E-1 classification. If the desired employee is currently in the US in a lawful nonimmigrant status, the qualifying employer may file on the employee’s behalf.
General Qualifications of a Treaty Trader
To qualify for E-1 classification, the treaty trader must:
- Be a national of a country with which the US maintains a treaty of commerce and navigation
- Carry on substantial trade
- Carry on principal tradebetween the US and the treaty country which qualified the treaty trader for E-1 classification.
Trade is the existing international exchange of items of trade for consideration between the US and the treaty country. Items of trade include but are not limited to:
- International banking
- Technology and its transfer
- Some news-gathering activities.
Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.
Principal trade between the US and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.
General Qualifications of the Employee of a Treaty Trader
To qualify for E-1 classification, the employee of a treaty trader must:
- Be the same nationality of the principal employer (who must have the nationality of the treaty country)
- Meet the definition of “employee” under the relevant law
- Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the US who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty trader status. If the owners are not in the US, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.
Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.
Special qualifications are skills which make the employee’s services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to:
- The degree of proven expertise in the employee’s area of operations
- Whether others possess the employee’s specific skills
- The salary that the special qualifications can command
- Whether the skills and qualifications are readily available in the United States
Knowledge of a foreign language and culture does not, by itself, meet this requirement.
Period of Stay
Qualified treaty traders and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. 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.
Terms and Conditions of E-1 Status
A treaty trader or employee may only work in the activity for which he or she was approved at the time 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:
- Relationship between the organizations is established
- Subsidiary employment requires executive, supervisory, or essential skills
- Terms and conditions of employment have not otherwise changed.