If you are a non-US national looking to travel to theUnited States to further existing international trade with the USA, the E-1 trader visa could be for you.
Before applying however, you will first need to assess whether you are eligible and that you and your business meet the E-1 trader visa requirements.
What is an E-1 trader visa?
The E-1 trader visa is a ‘nonimmigrant’ – i.e. temporary – work visa for citizens of countries with which the United States maintains a treaty of commerce and navigation. It allows treaty traders, or their senior or essentially skilled employees, to enter the US for the purpose of carrying out international trade.
They may also apply for their dependents to join them; these include a spouse and unmarried children under 21.
What are the E-1 trader visa requirements?
E-1 Trader requirements
A national of a treaty country
As a treaty trader you must, whether as an individual or business, possess the nationality of a country with which the U.S. maintains a treaty of commerce and navigation. The nationality of a business is determined by the nationality of the individual owners of that business. View the current list of E Treaty countries here.
Engaging in substantial trade
To qualify for an E-1 trader visa you must be coming to the US to engage in substantial trade. While there is no strict definition as to what constitutes ‘substantial trade’, at least 50% of the qualifying trade activity must be between the United States and your treaty country.
‘Trade’ can include the physical movement and exchange of goods services, transportation or services technology. Examples of qualifying services for trade could include journalism and banking.
In this context ‘trade’ means the international exchange of the goods, services and/or technology in question between the US and the relevant treaty country. There must be an actual traceable exchange of qualifying commodities, where title of the trade items must pass from one party to the other.
To be ‘substantial’, there must be a sizeable and continuing volume of trade based on an existing trading relationship. In particular, there must be numerous transactions establishing a continuing course of international trade.
There is no limit on the amount of trade that must take place, although greater emphasis is placed on the volume of transactions over the total monetary value.
Principally between the US and the treaty country
The total volume of your international trade should be ‘principally’ between your treaty country and the United States. The general rule requires that over 50% of the total volume of your international trade is with the US.
The remainder of the trade in which you are engaged may be international trade with other countries or domestic trade.
Intention to leave the US
As a nonimmigrant visa, the E-1 trader visa grants temporary permission to the holder to stay in the US for a limited period of time. You will have to leave the US before your visa expires.
When making your E-1 application, you will be asked to provide evidence of your intention to leave the US before the end of your visa period.
E-1 employee requirements
To qualify for an E-1 visa as an employee of a treaty trader, the individual must be coming to the US to engage in duties as an executive, supervisor or essentially skilled employee of the E-1 business. The employee – in the same way as the treaty trader – will only be permitted to carry out activities for which they were approved when applying for their visa. Exceptions may apply where it involves working for a parent company, but it’s advisable to take professional guidance to avoid breaching the visa conditions.
Working for a treaty trader enterprise
The trading enterprise and you as the trader must first meet the nationality requirement of holding the nationality of the treaty country and owning at least 50% of the business in question.
Engaging in duties as an executive or supervisor
Under this employee classification, E-1 employees must show they will be operating in an executive or supervisory capacity during your visa period in the US.
They must be able to demonstrate that the executive or supervisory elements are principal and primary functions of that role, granting them sufficient control and responsibility for the enterprise’s overall operations.
Other factors that will be considered include the number and skill level of the employees they will supervise, the level of pay they will receive and whether they already possess qualifying executive or supervisory experience.
Engaging in duties as an essentially skilled employee
Under this employee classification, the individual must possess skills essential to the successful and efficient operation of the enterprise in the US. Ordinarily skilled or unskilled workers generally do not qualify.
By its very nature, ‘essentiality’ must be assessed on the particular facts of each case. In determining whether or not skills are essential, regard will be had to the following factors:
- The experience and training necessary to achieve such skill(s)
- The uniqueness of such skills
- The availability of US workers with such skills
- The salary such special expertise can command
- The degree of proven expertise in the area of specialisation
- The function of the role
In some cases, ordinarily skilled workers can qualify as essential employees, for example, where workers are needed for start-up or training purposes. Such employees derive their essentiality from their familiarity with the overseas operations, rather than the nature of their skills. Take advice on the specific circumstances to ensure you are proceeding with the most appropriate visa route for your employees.
E-1 Company registration
To facilitate the transfer of a business owner to the US under the E-1, a non-US enterprise may register as an E-1 Treaty Trader. The application is made to a US consular post in the Treaty country. As an E-1 company, it is also possible to sponsor non-US employees to work in the business in the US.
The company owners must be Treaty country nationals holding valid passports from the relevant treaty country. The owners must own and control at least 50% of the company.
Engaging in substantial trade with the US
The company may be eligible for E-1 company registration if it is engaged in substantial trade with the US that qualifies as a continuous flow of sizeable international trade items or services, between the US and the treaty country of the foreign company.
Trading principally between the US and the treaty country
The foreign company’s international trade must be principally between the US and the treaty country of the foreign company.
Over 50% of the total volume of international trade (i.e., excluding domestic UK trade) of the foreign company must be between the US and the treaty country. The Embassy/Consulate will look at the one full year preceding filing the application to determine whether the foreign company satisfies this requirement.
How do I demonstrate the necessary E-1 trader visa requirements?
When applying for an E-1 trader visa you must establish that the trading enterprise and that you within your role in the organisation comply with all the necessary requirements.
This will demand detailed personal, business and financial information, with extensive documentary evidence in support, and attendance at a US visa interview.
The specific nature of your supporting documents will be determined by the circumstances at hand, and can vary greatly on a case-by-case basis. Take professional advice to understand what adjudicators are looking for in a successful application.
Will the E-1 trader visa allow me to stay in the US?
An E-1 trader visa is a nonimmigrant visa and therefore only temporary. While it can be renewed or extended indefinitely, you must continue to meet all applicable E-1 visa requirements throughout your stay in the US.
Unlike dual intent visas that allow you to work while applying for permanent residence by way of a Green Card, the E-1 visa does not create a path to U.S. citizenship.
In the event that you wish to renew your visa or otherwise extend your stay, you should seek expert legal advice on what options are available to you.
Do you have a question about the E-1 Trader visa? NNU can help!
The legal and evidential requirements relating to an E-1 trader visa application can be complex, requiring detailed documentation in support.
As specialists in US immigration, NNU’s London-based attorneys can guide you through the E-1 requirements and application process. Under current US immigration policy, visa applications are facing increasing scrutiny by adjudicators. Taking expert advice will help ensure you compile a robust application and avoid evidentiary or process issues which can result in a delayed or even refused application.
Contact us for guidance on your specific circumstances.
This article does not constitute direct legal advice and is for informational purposes only.