E-1 Visa – Treaty Trader Visitor
Purpose of the E-1 Visa Classification
The E-1 visa classification allows an individual to enter the United States temporarily to engage in substantial trade.
- Application for an E-1 visa is made directly to a U.S. consulate. There is no need to submit a preliminary petition with U.S. Citizenship and Immigration Services (CIS).
- There is no cap on E-1 visa extensions.
- E-1 Visa Treaty Traders may only engage in employment that is consistent with the terms and conditions of the activities forming the basis for their E-1 visa status.
- There are strict requirements on the nationality of individuals and the level of trade necessary to qualify for E-1 visa status.
- Under NAFTA arrangements, the usual documentary waiver provisions (such as the visa exemption) that normally apply to Canadians do not apply to the E-1 visa classification.
- Spouses and children under 21 may also receive E-1 visa status.
- The nationality of a spouse or child of an E-1 visa treaty trader is not material in determining eligibility for E-1 visa status.
- Spouses may obtain employment authorization.
- Spouses and minor children can also attend school.
Points of Interest
Regulations require only that E-1 visa visitors intend to depart when their status terminates. E-1 visa visitors do not have to maintain a foreign residence that they have no intention of abandoning.
Dual Intent: An application for initial admission, change of status, or extension of stay in E-1 visa classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
Individuals may change to E-1 visa status or extend their E-1 visa status by filing the necessary documents with the appropriate U.S. Citizenship and Immigration Services (CIS) Service Center. However, most U.S. consuls will adjudicate the E-1 visa application without regard to CIS approval. The consular officers are much more familiar with the E-1 visa category. Therefore, the value of going through the CIS Service Center is debatable.
One interesting and little known feature of the E visa category is that an individual may be admitted with a two-year I-94 even though the visa may be valid for a lesser time. For example, a person with one week left on his E visa may still obtain a two-year I-94 upon entry to the U.S.
For Canadians, it is especially important to keep in mind that since they are NOT EXEMPT from applying for an E-1 visa, if they change status internally and depart, they will not be readmitted at the POE without first applying for the E-1 visa at a U.S. Consulate. This could be a costly inconvenience because it may delay their reentry by a month or longer.
1. Definition of E-1 Visa – Treaty Trader
- The Immigration and Nationality Act (INA) and immigration regulations define an E-1 visa visitor as someone:
- Entitled to enter the United States under the provisions of a treaty between the United States and the foreign state of which he or she is a national;
- Coming to the U.S. solely to carry on trade of a substantial nature, including trade in services or trade in technology;
- Working either individually or as an employee of a foreign person or organization;
- Engaged in trade that is international in scope and principally between the United States and the foreign state of which he or she is a national; and
- The individual intends to depart the United States upon the expiration or termination of E-1 visa treaty trader status.
2. Requirements for E-1 Visa
Trade with an Authorized E-1 Visa Treaty Country.
To qualify for E-1 visa status, the treaty trader must engage in trade between the U.S. and an Authorized E-1 Visa Treaty Country.
The trade must be based on an existing relationship involving the international exchange of items. For example, the parties have already entered into successfully negotiated contracts prior to the time of the E-1 visa application.
The E-visa treaty trader’s business must conduct over 50% of its international trade with the U.S. A common example of this scenario is where goods are manufactured in Canada and shipped to the U.S. facility for marketing and selling them in the U.S.
The remainder of the trade (which must constitute less than 50%) may be conducted as domestic or international trade with other countries. As long as more than 50% is conducted between the foreign country and the United States, the remainder is of no consequence with respect to E-1 visa eligibility.
Two categories available under the E-1 visa classification:
- E-1 Visa Treaty Trader working individually on his or her own behalf; or
- E-1 Visa Employee.
The definition of “trade” for E-1 visa requirements is expansive, but it must include three main criteria: Exchange, International and Qualifying Activities.
Exchange – There must be an actual exchange of goods or services between the foreign country and the United States. The exchange must be documented and identifiable.
International – The trade must be international in scope and occur between the foreign country and the United States. The purpose of trade agreements is to encourage trade between the two countries. Therefore, simply doing business in the U.S. without any activity or trade with the foreign country will not suffice for an E-1 visa.
Qualifying Activities – Trade involves the commercial exchange of goods or services between the foreign country and the United States. Examples of trade of services for E-1 visa purposes includes international banking, insurance, transportation, tourism, communications, newsgathering, consulting, advertising and accounting design and engineering.
Substantial Trade. In order to qualify for an E-1 visa, the treaty trader must engage in substantial trade. Substantial trade is defined as:
- A continuous flow of international trade between the U.S. and the treaty country.
- Numerous transactions over time. A single transaction will not qualify.
- If involved in a small business, the income from international transactions must be sufficient enough to support the treaty trader and his or her family.
- Sources of proof include bills of lading, customer receipts, letters of credit, insurance papers documenting commodities imported, purchase orders, trade brochures, courier inventories, and sales contracts.
3. Procedure for E-1 Visa for Treaty Traders
- Step One: Application at U.S. Consulate.
- Step Two: Inspection at U.S. Port of Entry.
4. Step One: Application at U.S. Consulate
Basic application package for a nonimmigrant visa:
- Form DS-156, Nonimmigrant Visa Application;
- Form DS-158, Contact Information and Work History for Nonimmigrant Visa Applicant;
- A valid, unexpired passport;
- Passport-type photograph; and
- Application fee, if any.
- Note that males between the age of 16 and 45 must also use Form DS-157.
5. Step Two: Inspection at U.S. Port of Entry
Admission of E-1 Visa: Treaty Trader.
If the E-1 visa is granted, the E-1 visa visitor may then be admitted to the United States by an immigration officer at a U.S. port of entry.
Duration of E-1 Visa Status.
An E-1 visa treaty trader may be admitted for an initial period of not more than 2 years.
An E-1 visa treaty trader generally may not be admitted for a period of time extending more than 6 months beyond the expiration date of his or her passport.
6. Extension of E-1 Visa status
Extensions of E-1 visa status may be granted in increments of two years, and may be obtained through a CIS Service Center by filing Form I-129 and the E Supplement.
There is no limitation on the number of extensions of stay that may be granted.
To qualify for an extension of stay, the E-1 visa treaty trader must prove that he or she:
- Has at all times maintained the terms and conditions of his or her E-visa nonimmigrant classification;
- Was physically present in the United States at the time of filing the application for extension of stay; and
- Has not abandoned his or her extension request.
Time limit for Certain Employees with Special Qualifications:
- Employees of business enterprises with special qualifications who are responsible for start-up operations should be able to complete their objectives within 2 years.
- Absent special circumstances, such employees will not be eligible to obtain an extension of stay.
7. Change of Status
A foreign citizen in another valid nonimmigrant status may apply for change of status to the E-1 visa classification by filing an application for change of status on Form I-129 and E Supplement, with the required accompanying documents.
The spouse or minor children of an applicant seeking a change of status to E-1 visa treaty trader must file concurrent applications for change of status to derivative treaty classification on the appropriate Service form.
Applications for the spouse or minor children of an E-1 visa treaty trader will:
- Be approved only if the principal foreign citizen is granted E-1 visa status and continues to maintain that status; and
- Be approved for the same period of admission applicable to all other E-1 visa treaty traders.
8. Helpful Advice for E-1 Visa Treaty Traders
Labor disputes. Citizens of Canada or Mexico generally will not be entitled to E-1 Visa classification if:
- There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
- The E-1 visa applicant has failed to establish that his or her entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
- A country’s E-1 visa privileges are generally suspended once the U.S. places an economic embargo or sanctions on the country.
- Exclusive sale/distribution agreements are persuasive documents when verifying trade and volume of trade.
Also, if you qualify for both the E-1 visa and the E-2 visa, it is usually a better option to apply for the E-1 visa because it requires less documentation and it has no requirement for job creation.
In addition, if an individual has an inadmissibility problem, an E-1 visa may be the most expeditious way of obtaining an INA § 212 (d) (3) waiver.
For example, Canadian citizens (who are visa exempt for all visas except for the E-1 and E-2 visa categories) must file for a § 212 (d) (3) (B) waiver at a Port of Entry (POE), which is then forwarded to a local immigration office for processing.
Processing of a § 212 (d) (3) (B) waiver by immigration can take as long as 6-9 months.
A Canadian should consider using an E-1 visa whenever possible if he requires a waiver because a § 212 (d) (3) (A) waiver is processed at the Consulate in conjunction with an E-1 visa application.
9. For More Information on E-1 Visas