The three main requirements for this Nonimmigrant Visa are that the company or employee:
(1) Is a national, or your business is a national, of one of the 53 countries(and some territories) that are eligible for this visa, ( to see a full list of countries please click here)
(2) That you do “substantial trade”,
(3) That you carry on “principal trade” between the United States and the treaty country which qualified you for the E-1 Visa.
These are pretty broad categories so let’s break them down a little bit more.
First, you must be a national of one of the 53 countries that have treaties of commerce and navigation in international trade with the United States. Nationals of these countries are able to enter and live in the United States on their own behalf to engage in “International trade.” A corporation is considered a national of a treaty country if the majority of its owners are nationals of that country. This only applies to owners and not shareholders of the company. For example, in the 1990s Fendi, the high-end clothing company was owned by Italian nationals and was able to get certain employees E-1 Visas so they could work for the company in New York. However, in 2003 Fendi was bought by French Nationals, and the employees were no longer eligible for E-1 Visas because France is not a nation with treaty trader benefits with the United States. If you are a national of one of these 53 nations, you have completed the first requirement for the E-1 Visa.
The second requirement for the E-1 Visa is that the business does “substantial trade” with the United States. When the E-1 visa was created, the original purpose was to generally enhance or facilitate economic and commercial interaction between the United States and certain other nations. However, this is not necessarily meant to exclude smaller businesses in favor of corporations.
This generally means that your “trade” with the United States must be substantial enough to constitute a continuous flow of goods or services between the two nations and that it crosses international borders. The USCIS (United States Customs and Immigration Services) defines “substantial” trade to be when there are numerous transactions over a period of time and the income derived is sufficient enough to support the treaty trader. There isn’t a simple answer that fits all situations, so let’s look at some examples of what has constituted “substantial” business with the United States. For E-1 Visa purposes, “trade” has been expanded to include the exchange, purchase, or sale of goods or services.
Two important factors to consider are: (1) the volume of trade conducted, and (2) the monetary value of the trade. For example, a smaller businessman who conducts continuous and numerous transactions, although individually small in monetary value, could qualify for an E-1 Visa because of the volume of the trade. On the other hand, a business that conducts less frequent but more valuable transactions could also qualify for an E-1 Visa, as the value of the transactions is significant. Although there is no bright line rule in the books to determine substantial trade, the Department of State has suggested that a continuous flow of goods and/or services and at least three transactions, are relevant factors and will be looked at by the U.S. Immigration adjudicating officer.
There are several industries and businesses that can fall within the E-1 definition of trade. These service-based businesses include but are not limited to banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer. Furthermore, in 1997 trade was amended to also include successfully negotiated contracts that call for the immediate exchange of items, giving E-1 benefits even before the trading has begun.
The final element is that you carry on “principle trade” with the United States. If your company does business with other nations as well as the United States, the general rule is that at least 50% of the business must be with the United States. USCIS also has ruled that this trade must be ongoing; meaning that the trade with the United States must be continuing at the time of the E-1 visa application and approval, as well as throughout the time of the visa holder’s stay in the United States. A temporary dip below the 50% threshold is okay, but long-term departures from the standard could revoke an E-1 visa.
Employees of Treaty Trader Visa Eligible Companies
An employee of a company that qualifies as a treaty trader for the purposes of the E-1 Visa, is able to receive an E-1 Visa to work and live in the United States, while employed by the company. However, there are a few elements that must be met in order for employees to qualify: The employee must be essential and be either:
- Employed in a supervisory or executive capacity, or
- Possess highly specialized skills essential to the efficient operation of the firm.
The meanings of “supervisory or executive capacity” are pretty self-explanatory. However, the “highly specialized skills” of the company are usually determined on a case-by-case basis. Employees can even receive an E-1 Visa serving in minor capacities as long as they show that they possess “special qualifications essential to the efficient operation of the employer’s enterprise.” But, simple and easily acquirable skills like bookkeeping, clerical, or secretarial skills that although may be essential to the operation of the enterprise, can easily be taught to another employee and will not get you an E-1 Visa; on their own. If the candidate in a bookkeeping, clerical, or secretarial position can also prove that they possess specialized knowledge in dealing with customs in their native country, have valuable foreign language skills, or are highly vital to the corporation in another similar way, they might be found eligible under the E-1 Visa.
Employees in engineering or technical positions find themselves in similar situations as secretarial employees. Courts have suggested that a shortage of these positions domestically could qualify employees in engineering or technical positions of a treaty trader country to successfully apply for an E-1 Visa. In one case, two Italian engineering employees of an Italian corporation with a Massachusetts subsidiary were permitted E-1 Visas as their knowledge of creating a new computing system required their exact previous training. They also spoke both Italian and English, allowing them to be in direct communication with the Italian parent company; making their services vital to the operation.
So, qualities that make you a vital and important employee to the company can include specific, intricate skills, language ability, and knowledge of your home country’s business practices and customs are just a few examples of employee attributes that could help in securing an E-1 Visa. Basically, you must show that a United States Citizen could not replace you and that your skill set is specialized.
The E-1 “Treaty Trader” Visa is a great way to potentially come and work in the United States indefinitely with your current company, for as long as you and your company continue to meet the requirements for an E-1 visa. As E-1 Visas are often decided on a case-by-case basis, and are a complex legal matter, consulting an Immigration Attorney will generally give you the best shot at success.
