E-1 Visa – Treaty Trader

Summary

This visa applies to traders who are citizens of certain countries.

[Click here for List of Countries] – Refer to E-1

In order to qualify for a treaty trader visa, the person must be coming to the U.S.A. to carry on substantial international trade between the U.S. and the foreign country of which the applicant is a national.

Trade is defined as … the international exchange of items of trade between the U.S. and the Treaty country. This includes purchase or sale of goods and/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.

The trade must be substantial. It would be possible to qualify even if there were many transactions and each of those transactions were small in value. The term substantial is not defined as a monetary amount at this time.

The alien must be working in an executive, managerial or supervisory capacity or a person who makes their services essential to the efficient operation of the enterprise.

The trade must be in existence at the time of filing the E-1 application.

The E-1 will not be issued to someone who is in the process of setting up international trade between his country and the U.S.A.

Period of validity of the visa varies with each treaty country. In some cases, it may be granted for up to five years, with indefinite extensions.

Spouses and minor children of E visa holders will also be granted E visas, even if their nationality is not the same as the principal E visa holder. However, they cannot work in the U.S.

Treaty Trader

(1) Classification

An alien is classifiable as a non-immigrant treaty trader (E-1) if the consular officer is satisfied that the alien:

1. Will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien’s behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national, (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); and
2. Intends to depart from the United States upon the termination of E-1 status.

(2) Employee of Treaty Trader

An alien employee of a treaty trader may be classified E-1 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:

1. A person having the nationality of the treaty country, who is maintaining the status of treaty trader if in the United States or, if not in the United States, would be classifiable as a treaty trader; or
2. An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining non-immigrant treaty trader status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty traders.

(3) Spouse and Children of Treaty Trader

The spouse and children of a treaty trader accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty trader is not material to the classification of the spouse or child.

(4) Representative of Foreign Information Media

Representatives of foreign information media shall first be considered for possible classification as non-immigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as treaty traders.

(5) Treaty Country

A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E)

(6) Nationality of the Treaty Country

The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty trader. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.

(7) Trade

The term “trade” as used in this section means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other.

(8) Item of Trade

Items that qualify for trade within these provisions include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities.

(9) Substantial Trade

Substantial trade for the purposes of this section entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.

(10) Principal Trade

Trade shall be considered to be principal trade between the United States and the treaty country when over 50% of the volume of international trade of the treaty trader is conducted between the United States and the treaty country of the treaty trader’s nationality.

(11) Executive or Supervisory Character

The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.

1. An executive position provides the employee great authority to determine policy of and direction for the enterprise.
2. A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.

(12) Special Qualifications

Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.

1. The essential nature of the alien’s skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.
2. Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long-term essentially might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.

(13) Labor Disputes

Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:

1. 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
2. The alien has failed to establish that the alien’s 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.

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