The E-1 visa is a very practical option for individuals who have something significant to contribute to the U.S. economy but no other means of doing so.
E-1 visas are available for treaty traders. In order to qualify, the foreign national must:
- Be a national of a treaty country;
- Bear the same nationality as the company;
- Be performing the trade himself or, as an employee of the trading entity, must be filling an executive, managerial or essential skills role; and
- Must be engaged in substantial international trade, at least 50% of which is with his country of nationality.
While trade is commonly conceptualized as trade in goods, it should be noted that the Foreign Affairs Manual permits issuance of E-1 visas to individual traders, or to key employees of trading enterprises, which are engaged in international trade in services. Specifically, 9 FAM 41.51 N4.5(b), entitled “Activities Considered to Constitute Trade,” provides, in the pertinent part,
To constitute trade in a service for E-1 purposes, the provision of that service by an enterprise must be the purpose of that business and, most importantly, must itself be the saleable commodity which the enterprise sells to clients. The term “trade” as used in this statute has been interpreted to include international banking, insurance, transportation, tourism, communications, and newsgathering activities. (Aliens engaged in newsgathering activities, however, should usually be classified under INA 101(a)(15)(I).) These activities do not constitute an all inclusive list but are merely examples of the types of services found to fall within the E-1 meaning of trade. Essentially, any service item commonly traded in international commerce would qualify.
The Law Offices of James D. Eiss has successfully used this provision in numerous cases to obtain E-1 visas to individuals seeking to start up consulting companies in which they will essentially be self-employed in the United States. In such cases, in addition to the basic requirements outlined above, the individual visa applicant must:
- Incorporate a U.S. company prior to filing the visa application;
- Secure physical office space out of which to operate the enterprise (usually documented by providing a copy of a lease for commercial space);
- Prove that he has the academic and/or experiential background necessary to make such an enterprise successful; and
- If the business has not yet begun providing services prior to application for the visa, the individual must at least have entered into several binding contracts requiring him to provide services to U.S. customers. (9 FAM 41.51 N4.4 notes, “Existing trade includes successfully integrated contracts binding upon the parties that call for the immediate exchange of qualifying items of trade.”) In many of the cases we have done, our clients have already established consulting companies, often in Canada, prior to seeking an E visa and have found that more and more of their customers are located in the U.S. Depending on the type of consulting services, the individual's presence is not necessarily required in the U.S. in order to perform such contracts (as, for example, would be the case for some IT consulting services). Thus the individual may already be able to document provision of services to U.S. customers from abroad. If this is the case, it is helpful to document this. However, it is most important to document that the individual has entered into contracts requiring him to continue providing such services to U.S. customers in the future, following the approval of an E-1 visa.
The question may arise as to how the provision of consulting services by a U.S. corporation to U.S. customers would be considered to constitute “international trade” for E visa purposes. However, this overlooks the nationality of the individual E-1 trader. Essentially, when a foreign national enters the United States in E-1 status he is considered, for legal purposes, to be carrying a piece of his country inside of him. Thus when he, or his company, which for E-1 visa purposes is also considered to bear his nationality, provides services to U.S. customers he is doing so as an international entity. The trade in services thus bears an international character. It is the essence of the E-1 visa classification to facilitate the conduct of such trade by granting visas to appropriate individuals.
The E-1 visa is a very practical option for individuals who have something significant to contribute to the U.S. economy but no other means of doing so. We have filed many E-1s for Canadian citizens coming to the U.S. to open consulting companies. These same people are barred from applying for TN status, which prohibits self-employment, and often do not qualify for any other type of visa.