The “E-1” Visa for Treaty Traders
An individual may obtain E-1 visa status to pursue international trade for a qualifying entity, or on their own behalf as the owner of an entity, that engages in sufficient trade with the United States and their home country. Treaty employees may perform work for a U.S. company in a parent-subsidiary relationship with the foreign treaty company or for an entity as simple as a sole proprietorship.
To qualify for an E-1 Treaty Trader visa, the individual must be a national of one of the countries listed below and the entity registering for E-1 status must be majority owned (50% or more) by individuals who are nationals of the treaty country. The entity must be engaged “trade” – the international exchange of goods, services, technology, insurance, etc. – between the treaty country and the U.S. There are two additional qualifications: (1) the trade must be substantial, meaning a continuous flow of numerous transactions over time, and (2) the trade must be principally with the United States (50% or more of the business value or number of transactions). Proving this trade will involve submitting executed contracts, bills of lading, invoices, etc. to trace the flow of the trade from one country to another. US immigration favors systematic trade over sporadic, high-value transactions.
When a qualifying E-1 company sends an employee, the individual must be a national of the treaty country, be a genuine employee (as opposed to an independent contractor), and they must be engaged in executive or supervisory employment or possess critical proprietary knowledge. The nature of the employment is often scrutinized, as the E-1 is intended for individuals who have ultimate control and primarily responsibility for the business’ operation and/or its major components. Direct supervision of low-level employees is a red flag as the position should focus on policy and engagement with delegation of derivative duties to others.
To clear the threshold for use by employees who work in a unique capacity, the E-1 visa application must clearly identify company need, the employee’s proprietary expertise, and the presence of such skills in the U.S. from available US workers. Like the L-1B for intracompany transfers with specialized knowledge, a significant amount of preparation and framing of the employee’s qualifications is required to obtain an E-1 visa for a special employee because of unique regulatory requirements.
The method for obtaining E-1 status is to either apply for an E-1 visa at a consulate overseas or to apply from within the United States through USCIS. The validity period of E-1 status is two years at a time and E-1 status can be extended continuously as long as trade and employment requirements are maintained. Spouses and unmarried children under age twenty-one may obtain E-1 derivative status; dependents do not have to be the same nationality as the principal E-1 visa holder.
As of January 1, 2020, the following countries have active treaties with the United States for E-1 purposes: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, Colombia, Costa Rica, Croatia, Denmark (excluding Greenland), Estonia, Ethiopia, Finland, France (including Martinique, Guadeloupe, French Guiana and Reunion), Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Korea (South), Kosovo, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Montenegro, Netherlands (including Aruba and Netherlands Antilles), New Zealand, Norway (excluding Svalbard), Oman, Pakistan, Paraguay, Philippines, Poland, Serbia, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Turkey, and United Kingdom (including Channel Islands and Gibraltar; applies only to U.K. nationals & residents).