Chapter 20 Getting a Treaty Trader (e-1) Visa

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 20 Getting a Treaty Trader (E-1) Visa

A. Do You Qualify for an E-1 Visa?

1. Citizen of a Treaty Country
2. Company Owned by Citizens of a Qualifying Country
3. You Must Be Either a Supervisor or Manager or a Key Employee.........474
4. More Than 50% of the Company's Trade Must Be Between the U.S. and Your Home Country
5. Substantial Trade
6. Intent to Leave the U.S
7. Bringing Your Spouse and Children

B. Quick View of the E-1 Visa Application Process

C. How to Apply From Outside the U.S

1. Preparing and Submitting Your Application Form
2. Pay the Application Fee
3. Gather Supporting Documents
4. Attending Your Consular Interview
5. Visa Issuance and Entry into the United States

D. How to Apply If You're in the U.S

1. Preparing the Change of Status Application
2. Mailing the Change of Status Application
3. Awaiting a Decision on the Change of Status Application

E. Extending Your U.S. Stay

F. Visa Revalidation

The United States has entered into trade treaties with several countries and established the E-1 visa to help citizens of those countries to more easily engage in international trading activities. (See I.N.A. § 101(a)(15)(E), 8 U.S.C. § 1101(a)(15)(E); 8 C.F.R. § 214.2(e); 22 C.F.R. § 41.51.) If you are a business-person from one of these countries, and you plan to either engage in substantial trade with the U.S. or work for an enterprise that does substantial trade with the U.S., then an E-1 visa might be the one for you.

Some people call this visa the next best thing to permanent residence, because it allows the E-1 visa holder to be self-employed, and because it can be renewed indefinitely. There is no limit on the number of E-1 visas that can be issued every year.

SEE AN EXPERT

Do you need a lawyer? Simply figuring out whether you're eligible for a treaty trader visa can be difficult, and the procedural requirements are as complicated as most other U.S. visas. Hiring a lawyer might be a wise business expenditure.

A. Do You Qualify for an E-1 Visa?

To qualify for an E-1 visa:

• You must be from a qualifying country.
• You must work for a qualifying business.
• You must be either a 50% (or greater) owner or key employee.
• Most of your company's trade must be with the United States.

Key Features of the E-1 Visa

Here are some of the advantages and disadvantages of the E-1 visa:

• You can work legally in the U.S. for a U.S. company if more than 50% of its business is with your home country, and your country has entered a trade treaty with the United States.
• You are restricted to working only for the U.S. employer or a self-owned business that acted as your visa sponsor.
• Your initial visa may extend up to five years, with unlimited possible five-year extensions.
• Visas are available for your accompanying spouse and minor children, but your children may not accept employment in the United States.
• Your spouse may accept U.S. employment.
• You may travel in and out of the U.S. or remain here continuously until your E-1 status expires.

1. Citizen of a Treaty Country

E-1 visas are available to citizens of selected countries that have trade treaties with the United States. Those countries with treaties currently in effect are:

Argentina	Latvia
Australia	Liberia
Austria	Luxembourg
Belgium	Macedonia
Bolivia	Mexico
Bosnia and	Montenegro
Herzegovina	The Netherlands
Brunei	New Zealand
Canada	Norway
Chile	Oman
Colombia	Pakistan
Costa Rica	Paraguay
Croatia	Philippines
Denmark	Poland
Estonia	Serbia
Ethiopia	Singapore
Finland	Slovenia
France	Spain
Germany	Suriname
Greece	Sweden
Honduras	Switzerland
Ireland	Taiwan
Israel	Thailand
Italy	Togo
Japan	Turkey
Jordan	United Kingdom
Korea (South)	Yugoslavia.
Kosovo

Because treaty provisions are subject to change, be sure your country has one in force before proceeding with your application. The complete list is kept at Volume 9 of the Foreign Affairs Manual (FAM), Section 402.9-10. (See https://fam.state.gov.)

2. Company Owned by Citizens of a Qualifying Country

At least 50% of the business with which you're associated must be owned by citizens of your treaty country. (See 9 FAM § 402.9-4(B).) The company may be owned by you or by others. If the company is owned in part or in whole by others, and some or all of them already live in the U.S., those people might need to have E-1 visas themselves before the company can act as an E-1 sponsor for you. Specifically:

• At least 50% of the company must be owned by citizens of a single trade treaty country.
• The owners from the single trade treaty country must either live outside the U.S. and be classifiable for E-1 status or live inside the U.S. with E-1 visas.

This second condition can be a little confusing. Some examples might help to make it clearer.

EXAMPLE 1: The company is owned 100% by one person. The owner is a citizen of a trade treaty country and lives outside the U.S. in his home country. He would qualify for E-1 status if he sought to enter the United States.
In this case the owner does not need to already have an E-1 visa for the company to support your E-1 visa application. He has already fulfilled the alternative condition by living outside the U.S. and being eligible for such status.
EXAMPLE 2: The company is owned in equal shares by two people. Each owner is a citizen of the same trade treaty country. One owner lives in the U.S. on a green card. The other still lives in his home country and is classifiable as an E-1.
In this case, neither owner needs an E-1 visa for the company to support your E-1 application, because 50% of the owners have fulfilled the qualifying conditions. If, however, we changed this example so that both owners lived in the U.S., at least one of them would need an E-1 visa to fulfill the required conditions. (Green card holders do not qualify as treaty investors for E-1 purposes.)
EXAMPLE 3: The company is owned in equal shares by 100 people. Thirty owners are citizens of a particular trade treaty country but live in the United States. Thirty other owners are citizens of the same trade treaty country and they are living in their home country, but are eligible as E-1 visa holders. The remaining 40 owners are U.S. citizens.
In this situation, if the company is to act as an E-1 sponsor for others, 20 of the 30 owners who are citizens of the trade treaty country but live in the U.S. must hold E-1 visas. Remember that only 50 of the owners need to be citizens of the treaty country. Of those 50, each must either live outside the U.S. and be classifiable as E-1s, or live in the U.S. on an E-1 visa. In our example, 30 live outside the United States. Therefore, only 20 of the trade treaty country citizens living inside the U.S. need to have E-1 visas to make up the necessary 50% total of qualifying owners.

Additionally, USCIS regulations allow a different test in the case of publicly traded corporations in which it is difficult to determine the nationality of each shareholder. In the situation where a corporation's stock is traded exclusively in the country of incorporation, it may be presumed to have the nationality of the country where the stocks are exchanged.

3. You Must Be Either a Supervisor or Manager or a Key Employee

E-1 visas may be issued to people who are executives, supervisors, supervisory role executives, or persons whose skills are essential to the enterprise.

a. Executives and Supervisors

The main duties of your position must be executive or supervisory and give you ultimate control and responsibility for the operation of at least a major part of the enterprise. The immigration authorities will apply the following standards to determine whether a given position fits the bill:

• An "executive" position normally gives the employee great authority in determining the policy and direction of the enterprise.
• A "supervisory" position normally entails responsibility for supervising a major portion of an enterprise's operations and does not usually involve direct supervision of low-level employees.
• Your skills, experience, salary, and title should be on a par with executive or supervisory positions. The position should carry overall authority and responsibility in the context of the enterprise, such as discretionary decision making, policy setting, direction and management of business operations, and supervision of other professional and supervisory personnel.

b. Essential Employees

If you're not an executive or supervisor, you may still get an E-1 visa if you are an employee with special qualifications that make your services essential to the efficient operation of the enterprise. Your skills do not have to be unique or one of a kind, but they should be indispensable to the success of the company. USCIS evaluates employees' skills on a case-by-case basis. However, if your skills are commonplace or readily available in the U.S. labor market, showing that you are essential will be difficult.

The immigration authorities will consider the following to determine whether a nonexecutive, nonsupervisory person should be classified as an E-1 employee because his or her skills are essential:

• the degree of expertise in the area of operations involved
• the degree of experience and training with the enterprise
• whether U.S. workers possess the individual's skills or aptitude
• the length of time required to train an individual to perform the job duties of the position
• the relationship of the individual's skills and talents to the overall operations of the entity, and
• the salary the special qualifications can command.

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