IMMIGRATION: E-1 Treaty Trader Visas

THE E-1 TREATY TRADER VISA CATEGORY

For a List of E-1 Visa Countries See: http://foia.state.gov/masterdocs/09fam/0941051X1.pdf

Overview of the "E-1" Visa Category:

An "E" visa is based upon a treaty of friendship, commerce and navigation, or a Bilateral Investment Treaty. Corporations and citizens of a qualifying treaty country may qualify for an "E-1" Treaty Trader visa on the basis of trade between the the treaty country and the United States.

See the "List of E-1 Treaty Countries" below to see if your country of citizenship may qualify you as an "E-1" Treaty Trader.

The "E" visa category is the nonimmigrant visa category which most closely approximates the status of an immigrant. Section 101(a)(15)(E) of the Immigration and Nationality Act (INA) describes the "E" category as follows:

"an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign of which he is a national, and the spouse and children of any such alien if accompanying or following to join him:

(i) solely to carry on substantial trade, principally between the United States
and the foreign state of which he is a national; or

(ii) has invested, or of an enterprise in which he is actively in the
process of investing, a substantial amount of capital . . ."

So long as eligibility continues, "E" status not only permits the alien to engage in the qualifying trade, but permits incidental activities as well, and to stay in the United States indefinitely, so long as the alien engages in the qualifying "E" employment. It allows the spouse and children to join the principal alien in the same status. Spouses of "E" principles can work after receiving authorization from the U.S. Citizenship & Immigration Services and children may attend school without any formal application.

The nationality of the spouse and children is immaterial to their "E" status. Only the nationality of the principal alien is an issue. Note, however, that children lose their "E" classification when they turn 21 years of age, and must thereafter qualify for admission to the United States as an independent adult.

The basic requirements for an "E-1" visa are:

1.  Both the employer and the employee must have the nationality of a country which has a  
     treaty of commerce and navigation or a bilateral investment treaty with the United States
     of America. (Note, however, that a U.S. permanent resident owner of a business, who is
     a national of a treaty country does not qualifiy as as a "national" of the treaty country.)

2.  The alien must be an "executive", "manager", or have a "essential skills" necessary to
     the operation of the employer.

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A "Treaty Trader" must carry on trade of a "substantial" nature, that is international in scope, and principally between the United States and the treaty country. It is important to consult competent legal counsel for an analysis of any particular situation and an application of the law and regulations to any particular business situation.

Definition of "Trade":

There is no definition of "Trade" in the immigration statutes, but is found in the Regulations. The U. S. Department of State has long understood that "trade" was to be viewed liberally, so as to "encompass
the wide ranging types of transactions in the business world." Ordinarily there had to be an exchange of goods or money to constitute transactions. Although the U.S. Department of State has appreciated that since the enactment of the treaty trader provision in 1924, that trade was not restricted to the sale of tangible goods, it was not until the Immigration Act of 1990 (IMAC 1990) that the concept of "trade"
to include "services" more generally became law.

Under the currently accepted definition, trade means: "the exchange, purchase or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value. Services are economic activities whose outputs are other than tangible goods. Such service activities include, but are not limited to, banking, insurance transportation, communications and data processing, advertising, accounting, design and engineering, management consulting, tourism, and technology transfer."
[8 C.F.R Sec. 214.2(e)(2)]

The U.S. Department of State has long interpreted "trade" to include international banking, insurance, transportation, tourism, communications, and news gathering activities, in addition to business that provide other types of services, such as law, inspection and testing, accounting, marine survey and any other business that offers a service to its customers, even though there is no trade in goods.

"Substantial Trade" Defined:

The word "substantial" in describing trade is not intended to exclude aliens who trade on a modest scale or who are employed by small companies. It refers to the volume or number of transactions and not necessarily to their monetary value. A pattern of many small transactions, or one or a few small transactions which are complex in their negotiations and deal with high-dollar products can qualify. The trade can be considered substantial if it yields enough income to support the individual trader and the trader's family. The State Department regulation directs attention to a practical factor. It adds to the requirements of trade: "consideration being given to any conditions in the country of which the alien is a national which may affect the alien's ability to carry on such substantial trade . . ."
[22 C.F.R Sec. 41.51(a)(1)].

If your company does not qualify under the test for "substantial trade" between the USA and a qualifying "E" country, of which you are a citizen, you might want to look at an "E-2" Treaty Investor visa.

"E-1" visas have very stringent qualification requirements, too numerous to name here. It is essential that qualified legal counsel be consulted before attempting to apply for an "E-1" Treaty Trader visa.

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