E-1 Visas for Treaty Traders
The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States solely to engage in international trade on his or her own behalf. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
To qualify for E-1 classification, the treaty trader must:
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Be a national of a country with which the United States maintains a treaty of commerce and navigation or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation;
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Carry on substantial trade; and
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Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.
Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country. Items of trade include but are not limited to:
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Goods
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Services
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International banking
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Insurance
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Transportation
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Tourism
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Technology and its transfer
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Some news-gathering activities.
Substantial trade generally refers to an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. The continuous flow contemplates numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is a relevant factor in considering substantiality, greater weight is given to more numerous exchanges of greater value. For smaller businesses, the income derived from the value of numerous transactions which is sufficient to support the treaty trader and their family is a favorable factor.
Principal trade between the United States and the treaty country exists when over 50% of the volume of international trade of the treaty trader is between the United States and the treaty country of the treaty trader’s nationality.
To qualify for E-1 classification, the employee of a treaty trader must:
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Be the same nationality of the principal noncitizen employer (who must have the nationality of the treaty country)
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Meet the definition of “employee” under relevant law
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Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications that make the employee’s services essential to the efficient operation of the treaty enterprise.
Duties which are of an executive or supervisory character are those that primarily provide the employee ultimate control and responsibility for the treaty enterprise’s overall operation, or a major component of it.
Special qualifications are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the treaty enterprise. There are several qualities or circumstances that could, depending on the facts, meet this requirement. These include, but are not limited to:
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The degree of proven expertise in the employee’s area of operations
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Whether others possess the employee’s specific skills
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The salary that the special qualifications can command
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Whether the skills and qualifications are readily available in the United States.
Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.
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