E-1, Treaty Trader
The nonimmigrant E classification is reserved for nationals of countries with which the U.S. has a treaty of commerce and navigation or equivalent agreement. In the case of the E-1, they are coming to the U.S. to carry on substantial trade, including trade in services or technology, chiefly between the U.S. and the treaty country. An applicant may qualify as the trader or as an employee of a qualifying trading company only if he possesses the same nationality as the company.
Dependent spouses and children of E-1 traders are ordinarily accorded E-1 status as well, regardless of nationality. E-1 spouses (but not children) may apply for unrestricted employment authorization following entry to the U.S. in E-1 status.
Following are the basic requirements for E-1 classification:
- Requisite treaty exists
Individual possesses same nationality as the company. The individual's nationality can be documented through his passport. If the applicant is a dual national, the passport used for the visa application controls his nationality for the purpose of the E visa travel.
The organization's nationality is the nationality of its individual owners of the business. Nationals of the treaty country must own at least 50 percent of the business in question. In cases where a corporation is sold exclusively on a stock exchange in the country of incorporation, typically one can presume that the nationality of the corporation is that of the location of the exchange.
One cannot qualify for an E-1 visa as an employee of a treaty trader where the employer, if an individual, is present in the US in some status other than E-1. The same applies in the case of a corporate employer, where more than 50% of the individuals who own the employer are residing in the United States in some capacity other than E-1.
Those seeking E-1 status as employees of treaty trader companies must do so in a capacity that is either executive and/or supervisory, or is an essential employee. Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof. An executive position provides the employee great authority to determine policy of and direction for the enterprise. A supervisory position grants the employee supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees.
In order to qualify as an executive or supervisory employee, the executive or supervisory element of the employee' position must be a principal and primary function of the position and not an incidental or collateral function.
In determining whether the proposed position is executive or supervisory, consular officers will consider the title of the position, its place in the company's organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the company's overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience.
If the employee seeks E visa classification to fill the role of an “essential employee” for a treaty trader company, the applicant must establish at the time of application not only the need for the special qualifications that he or she offers but also the length of time that such skills will be needed. In general, the E classification is intended for specialists and not for ordinary skilled workers.
Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise. The essential nature of the alien's skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary that the special qualifications can command.
There are two distinct types of essential skills workers: (a) short-term essential skills workers, and (b) long-term essential skills workers. In the case of short-term essential workers, the employer may need the skills for only a relatively short period of time when the purpose of the employee's admission relates to start-up operations (of either the business or a new activity by the business) or to the training and supervision of technicians employed in manufacturing, maintenance and repair functions. Ordinarily skilled workers can qualify as essential employees but this almost always involves workers needed for start-up or training purposes.
A new business or an established business expanding into a new field in the United States might need employees who are ordinarily skilled workers for a short period of time. Such employees derive their essentiality from their familiarity with the overseas operations rather than the nature of their skills.
Employers in such cases are expected to train United States workers to replace these employees, usually within one or two years. Short-term essential skills workers are therefore in a less desirable position than L-1B specialized knowledge workers, who are not required to demonstrate that U.S. workers will be trained to replace them.
Long-term essentiality may be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States. If an applicant establishes that she has special qualifications and, on a long-term basis, these qualifications are essential for the efficient operation of the treaty enterprise, the training of United States workers as replacement workers is not required. It should therefore be possible for such an employee to remain in the United States, in either E-1 or E-2 status, for an indefinite period of time.
- International Trade Requirements:
- Trade must constitute an exchange of goods, moneys or services. The trade must be documented at the time the visa application is made. Existing trade includes successfully negotiated contracts binding upon the parties which call for the immediate exchange of items of trade. Items which qualify as items of trade usually include, but are not limited to, goods, services, technology, banking, insurance, transportation, tourism, communications, and some news gathering services.
- The trade must be substantial. According to 9 FAM 41.51 N6, “substantial trade” entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction. In the case of smaller companies, trade will still be considered substantial if the income derived from the international trade is sufficient to support the treaty trader and his or her family.
- The international trade conducted by the treaty trader—whether the trader is an individual, partnership, joint venture or corporation—must be principally (50% or more) between the U.S. and the country of the alien's nationality. Domestic trade is not considered. The trade can be demonstrated through purchase orders, bills of landing, sales contracts or contracts for services, letters for credit, trade brochures, accounts receivable, and the like.
E visas are typically issued with a 5 year validity period. However, the E-1 visa holder ordinarily is admitted for a period of up to two years (but not for more than 6 months beyond the passport expiration date). Each time the visa holder travels abroad and reenters the US during the visa validity period, he usually is admitted for a fresh 2 year period. There is no limit on the number of extensions or the total time a nonimmigrant USCIS may extend E status.
USCIS may extend E status in increments of up to two years without limit on the number of extensions. However, USCIS can only approve extensions of stay and if someone with a USCIS E-1 extension travels abroad, he must still apply for a new E-1 visa if he does not current visa in his passport, and the U.S. consulate abroad will readjudicate E-1 visa eligibility. Therefore, where there are certain situations in which it makes sense to apply for E-1 extension with USCIS due to timing issues, it is usually best to apply for a new E-1 visa abroad rather than filing a petition with USCIS.