E-1 classification
A trader, that is a “treaty country” national, may be eligible for US admission in the E-1 nonimmigrant classification, where the treaty trader is seeking US admission to solely—principally, mostly, or overall—carry-on international trade of substantial scope—an amount of trade sufficient to ensure a continuous flow of international trade items between the US and the treaty trader’s country of nationality.
Such trade must be principally between the US and the treaty trader’s country of nationality. In other words, more than 50 percent of the treaty trader’s total international trade volume must be between the US and the treaty trader’s country of nationality. Purely domestic trade or domestic market development alone would not qualify. Although the predominant purpose for seeking US admission is for the treaty trader to engage in substantial trade, the treaty trader may have an ancillary or coincidental purpose of travel as well, to the extent not in conflict with the E-1 classification requirements.
Qualifying trade is the existing international exchange (traceable and identifiable) of items of trade—including but not limited to goods, services, insurance, international banking, monies, transportation, accounting, management consulting, technology and its transfer, communications, data processing, design and engineering, advertising, tourism, as well as some news-gathering activities—for consideration between the US and the treaty trader’s country of nationality. There must be an actual, meaningful, exchange of qualifying commodities, with a traceable and identifiable continuous flow of trade items between the US and the treaty trader’s country of nationality, with the title of goods passing from one treaty party to the other. If services are performed in the US in exchange for consideration, the proceeds should still support business activities in the other treaty country, as merely placing the proceeds in a foreign bank account may not be sufficient to indicate a meaningful exchange.
Goods are tangible merchandise or commodities of extrinsic value. Services are legitimate economic activities providing other than tangible goods. For trade in services, the provision of the service by the E-1 treaty enterprise must be its business purpose, where the services are the actual saleable commodity of the E-1 treaty enterprise to its clients.
The trade must be already in progress, which in connection with the substantial trade and principal trade requirements, can make the E-1 classification more difficult to obtain for early-stage startup enterprises. Established entrepreneurs who already have a US customer base, as well as a business operation abroad, will likely find it relatively easier to satisfy E-1 classification requirements. Existing trade can be supported by duly executed and binding contracts evidencing the call for immediate exchange of items of trade. Thus, the E-1 classification can still be used for a newly established US enterprise, such as where the existing business abroad will immediately provide inventory to the US company in exchange for consideration, including to fulfill existing and ongoing US customer orders.
Limiting conditions of the treaty trader’s country of nationality, which may impact the treaty trader’s ability to carry on such substantial trade, are also considered, in determining E-1 classification eligibility. Such obstacles can include US economic embargos and/or sanctions placed on the treaty trader’s country of nationality.
Certain employees of an E-1 treaty trader—individuals who will be employed with the US enterprise in executive, supervisory, or essential skills positions—may also be eligible for the E-1 classification, if such individuals share the same treaty country nationality as the E-1 treaty trader.
The E-1 treaty trader as well as E-1 treaty employees may only engage in employment consistent with the underlying activity as well as terms and conditions of E-1 status. All E-1 holders must maintain the intent to depart the US upon E-1 status expiry/termination.
For treaty country nationals, the E-1 classification is generally preferable to the L-1 intracompany classification, as the E-1 classification does not generally require maintaining a business outside of the US; strict requirements on periods of previous qualifying experience with a foreign operation abroad; or a prior approved nonimmigrant petition filing with US Citizenship and Immigration Services (USCIS). There is also not a general maximum limit on the total aggregate period for E-1 status, in contrast to L-1A (7 years) and L-1B (5 years). The E-1 classification is not available to all foreign nationals though, as the foreign national must be that of a qualifying treaty country.
E-1 Treaty Country
E-1 treaty countries are foreign states which the US maintains a qualifying Treaty of Friendship, Commerce, or Navigation (or its equivalent, such as a Free Trade Agreement), as well as those foreign states which have otherwise been deemed a qualifying country with treaty visa privileges pursuant to specific legislation.
E-1 Treaty countries include: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Ireland, Israel, Italy, Japan, Jordan, Korea (South), Kosovo, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Montenegro, Netherlands, New Zealand, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Portugal, Serbia, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, and Yugoslavia.
E-1 Treaty countries do not include: Albania, Algeria, Angola, Armenia, Azerbaijan, Bahrain, Bangladesh, Belize, Botswana, Brazil, Bulgaria, Cambodia, Cameroon, China (including Hong Kong), Congo (Brazzaville), Congo (Kinshasa), Cyprus, Czech Republic, Ecuador, Egypt, Eritrea, Gabon, Georgia, Grenada, Haiti, India, Jamaica, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lithuania, Mauritius, Moldova, Mongolia, Morocco, Namibia, Nepal, Nigeria, Panama, Peru, Qatar, Romania, Russia, San Marino, Saudi Arabia, Senegal, Slovak Republic, South Africa, Sri Lanka, Trinidad & Tobago, Tunisia, UAE, Ukraine, Vatican City, Venezuela, Vietnam, and Zimbabwe, among others.
E-1 Treaty Country Nationality
The authorities of the particular treaty country determine whether an individual is a national of the particular foreign state. This determination will typically be evidenced by the individual holding a valid passport from the respective treaty country. If the person (including spouse) acquired such nationality through financial investment (unless prior to December 27, 2022), the person must have been domiciled in the treaty country for a continuous period of at least 3 years prior to applying for the E-1 classification. A treaty trader who holds U.S. lawful permanent residence does not qualify to bring in employees under the E-1 classification.
To determine the nationality of a business, ownership must be traced to the ultimate owners of the enterprise/organization (must be at least 50 percent treaty country nationals). The country of incorporation is irrelevant; however, if the organization is listed on one country’s stock exchange, the nationality of that country may be presumed (supporting documentation is still necessary to support this presumption though). For determining business nationality, the stock shares owned by a U.S. lawful permanent resident cannot be considered.
E-1 Substantial and Principal Trade
To meet the “substantial” trade requirement, the amount of trade, between the US and the treaty trader’s country of nationality, must be sufficient to ensure a continuous flow of international trade—numerous transactions over time (a single transaction alone would not be sufficient). A greater volume of larger value exchanges is more favorably considered for determining whether the substantial trade requirement is met, whereas trade item monetary value is also a relevant consideration. There is not a set definitive minimum amount of exchange volume or value per individual transaction that will always meet the requirement though. For a smaller business, numerous transactions at a value which provides a sufficient income to support the treaty trader and his/her dependents would be a favorable assessment factor for determining whether the substantial trade requirement is met.
The trade must be international in scope, and meet the “principal” trade requirement. In other words, more than 50 percent of the treaty trader’s international trade volume, regardless of location, must be conducted between the US and the treaty trader’s country of nationality. The remaining amount of trade can be domestic trade and/or international trade with other countries. If the E-1 treaty trader meets the more than 50 percent requirement, the duties of an E-1 employee for the E-1 enterprise need not be similarly apportioned.
E-1 Treaty Trader
The treaty trader can be an individual, partnership, joint venture, corporation (parent or subsidiary), and so on, where the trade conducted by such legal person will be the focus, whether foreign or US-based. To qualify as an E-1 treaty trader, treaty country national(s) must own at least 50 percent of the E-1 treaty enterprise. The E-1 treaty trader, including an E-1 treaty enterprise owner as employee of the E-1 treaty trader, must be seeking admission to the US in E-1 status to solely carry-on substantial trade, of international scope, that is principally between the US and the E-1 treaty trader’s country of nationality.
E-1 Employer
The principal treaty national employer must either be 1) a person in the US holding treaty country nationality, while also maintaining E-1 treaty trader status in the US, or if abroad, would be classifiable as a E-1 treaty trader; or 2) an organization/enterprise at least 50 percent owned by persons in the US that hold treaty country nationality, while also maintaining E-1 treaty trader status in the US, or if abroad, would be classifiable as a E-1 treaty traders.
E-1 treaty employees may be able to perform work for the actual parent treaty organization/enterprise, or any of its qualifying subsidiaries, where the approved E-1 application included evidence of the enterprise/organization and its qualifying subsidiaries—the work location, and that the subsidiaries independently qualify as a treaty organization/enterprise. In the case of an E-1 treaty trader employee, the work responsibilities must require executive, supervisory, or essential skills. Above all, the work to be performed must be consistent with the underlying approved activity for the E-1 classification.
E-1 Executives, Supervisors, and Essential Skills Employees
To qualify for E-1 status as an E-1 treaty enterprise executive or supervisory employee, the treaty country national must be seeking US admission to principally and primarily perform an executive or supervisory position, entailing the employee having ultimate responsibility and control for a major component of the E-1 enterprise or its overall operation.
The required threshold of responsibility and control is based on consideration of whether (as applicable):
· The executive position provides the employee great authority to determine enterprise direction and policy;
· The supervisory position provides the employee supervisory responsibility for a significant proportion of enterprise operations, and does not generally involve low-level employee direct supervision; and
· The applicant possesses executive and supervisory skills and experience; executive or supervisor-level employment commensurate salary and position title; in the overall organizational structure, the position is recognized (or has indicia) as one of authority and responsibility; responsibility for discretionary decision-making, policy-setting, managing/directing business operations, supervising professional/supervisory personnel; and where any limited routine work is required for the position, such routine work is only of an incidental nature for the position.
For a non-executive/non-supervisory role that requires special qualifications, a treaty country national may qualify for E-1 status for employment with the E-1 treaty enterprise, if the individual has essential skills/aptitudes to be utilized in the employment position, which are essential to the E-1 treaty enterprise’s successful or efficient operation. For determining if an individual possesses such essential skills, the following aspects must be considered (as applicable):
· The individual’s degree of proven expertise in the involved operational area; the training/experience period necessary for effective performance of projected duties; the individual’s training/experience length with the E-1 treaty enterprise; the skills/knowledge relationship to E-1 treaty enterprise specific processes/application, and the salary commandability of the special qualifications; if the individual’s specific skills/aptitude are possessed by others; foreign language/cultural knowledge do not in itself satisfy the special qualifications requirement; and
· If the skills/qualifications are readily available in the US. All presented facts must be taken into account for determination if the individual possesses the essential special qualifications. The essentiality of a particular skill may change over time, and become commonplace later. Skills necessary for initial enterprise start-up and operations may not continue to be necessary after initial startup phase post-completion where operations are running smoothly. Certain skills may only be short-term essential for training locally hired employees. In some situations, based on quality control, product improvement, or the delivery of a service not generally available in the US, the essentiality of the individual’s skills to the US treaty enterprise may continue for a longer period of time. Based on the E-1 treaty enterprise’s time-limited need of the individual’s essential skills, a reasonable projected start-up completion date or essential skilled worker replacement date, in addition to supporting documentation, may be required.
An essential skills employee is not strictly required to have prior employment experience with the organization. For essential skills employees who are responsible for start-up operations, a presumption exists that such individuals should be able to complete their objectives within 2 years, although there may be special circumstances for limited exceptions.
E-1 Duration
The initial period of E-1 status in the US can be up to 2 years, and extensions of E-1 status in increments of up to 2 years are available, with no maximum limit on the number of extensions. Further, an E-1 treaty trader or employee who travels abroad, may generally be granted an automatic 2 year period of readmission when returning to the US with a valid E-1 visa.
E-1 Application Process (General)
If the treaty trader is already in the US in a different valid nonimmigrant status, the treaty trader may file an E-1 petition to request a change of status to E-1. If the prospective employee is in the US in a different valid nonimmigrant status, the qualifying E-1 employer may file the E-1 petition on the prospective employee’s behalf to request a change of status to E-1. The filing fees for an E-1 petition with USCIS will range from $810 to $1,615.
If USCIS requires more information to adjudicate the E-1 petition, or intends to deny the petition based on the information/documentation already provided, USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). A formal response must be timely provided to USCIS in respect of the RFE or NOID. If USCIS ultimately denies the E-1 petition, it may be possible to file a motion to reopen and/or reconsider the E-1 petition denial decision, although the denial decision may not be appealed.
If the treaty trader or prospective employee is outside of the US, then the E-1 application must be submitted to the US Embassy/Consulate. Individuals must follow the applicable instructions and guidelines provided by the US Embassy/Consulate where the application will be made. The E-1 visa application fee is $315.00, in addition to a new visa integrity fee of $250 (the start date on the latter is pending). The validity period of the E-1 visa will depend on the US Department of State reciprocity schedule (i.e. the maximum validity period is typically 5 years), and the E-1 visa can be renewed where requirements are met. After approval of the E-1 visa, the individual may then seek to enter the US and be admitted in E-1 status at a US Port of Entry.
If the E-1 visa application is refused/denied at the US Embassy/Consulate, depending on the reasons for the actual refusal/denial, the treaty trader or prospective employee may still be able to reapply for an E-1 visa in the future, although a different strategy may be needed or a waiver if there is an inadmissibility issue.
E-1 Application Processing Time
For E-1 petitions filed with USCIS, regular processing will be around 1 year, although the processing time is subject to fluctuate. For an additional fee ($2,805), premium processing is available for E-1 petitions filed with USCIS, which may allow a decision on the E-1 petition within 15 business days. Where the E-1 petition is ultimately approved, USCIS will issue a formal E-1 approval notice. For treaty traders or prospective employees applying for the E-1 classification/visas at US Embassies/Consulates abroad, processing time will generally be more favorable, subject to visa appointment availability. As mentioned earlier, if the treaty trader or prospective employee is outside of the US, he or she will be required to submit the E-1 application to the US Embassy/Consulate.
E-1 Amendment
After E-1 status approval, if there will be a substantive change in the terms and conditions of E-1 status, such as a fundamental change in the employing entity’s basic characteristics (i.e. acquisition, merger, sale of the division where the E-1 holder is employed, or other event affecting the E-1 treaty trader’s/employee’s previously approved relationship with E-1 treaty enterprise), then either 1) an E-1 amendment petition must be filed with USCIS (with evidence of continued E-1 eligibility in the new capacity); or 2) the individual must obtain a new E-1 visa from a US Embassy/Consulate reflecting the new E-1 terms and conditions, and subsequently be admitted to the US in E-1 status at a US Port of Entry. A substantive/fundamental change does not generally include a corporate change that does not affect the previously approved employment relationship.
E-1 Dependents
The E-1 principal’s spouse, and unmarried children under the age of 21, may be eligible for E-1S/E-1Y dependent status/visas, in connection with the E-1 principal’s status. The dependents are not required to have treaty country nationality. The E-1S spouse is eligible for work authorization in connection with E-1S status.
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