E1 Visa

Treaty Trader Visa

The E1 is a “non-immigrant” visa for traders of foreign countries that have a Treaty of Commerce and Navigation or a bilateral treaty investment with the United States.

Treaty Countries

The United States signed the Treaty with 78 countries, allowing foreign investors to obtain E-1 (Treaty trader) or E-2 (Treaty Investor) visas.

The E1 visa is structured for business owners, managers, or employees who are required to stay in the U.S. for large periods of time to work for an enterprise that is engaged in trade (import/export) with the U.S.

Defining Commerce in the United States

The U.S. Citizenship and Immigration Services (USCIS) defines “commerce” as the International sale of goods, which produces a large volume of business between the U.S. and a treaty country. In general, the trade involves a constant flow of commercial units, through numerous operations over time.

Items of commerce include but are not limited to:

Goods;
International banking services;
International insurance services;
International transport services;
Tourism services;
Technological items and their transfer;
Some news-gathering activities.

E1 Visa requirements

In order to qualify for an E1 visa, the petitioner must meet certain specific requirements:

The applicant must be a citizen of a country of one of the 78 Treaty Traders countries;
The Trade must be substantial, or there must be a continuous flow of commerce, which involves numerous operations over time. There is no minimum monetary value or volume of each transaction. It will be given greater importance to higher value transactions;
The trade will be principally between the U.S. and the treaty country or more than 50% of the total volume of international trade.

Employees of an E1 Visa Holder

Employees of a Treaty Trader must:

Be the same nationality of the employer;
Be engaged in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications. As defined by the USCIS, special skills are the degree of proven expertise, whether others possess them, whether are readily available in the United States, or the salary that the special qualifications can command;
If the employer is not an individual, it must be an enterprise or organization at least 50% owned by people in the United States who have the nationality of one of the treaty countries.

No path to U.S. Citizenship

E1 visa holders are initially granted a maximum stay of 5 years or 2 years in case of a change of status. Requests for extension of stay can be filed and may be granted for periods of up to two years each. Even if there is no maximum limit to the number of extensions granted, the alien has to maintain the intention to leave the U.S. when the status expires and the business must remain active and the trade substantial.

Unlike other visas, such as the H-1B or L-1 that allow the “dual intent”, the E1 visa does not create a path to U.S. citizenship (through a Green Card).

E1 Visa Spouse and children

The spouse and/or unmarried children under 21 years of age may be granted admission as well, for the same period of time the E1 visa holder. Their nationalities need not be the same as the employee. The spouse may also apply for unrestricted work authorization, submitting Form I-765, Application for Employment Authorization, with USCIS. Children can only attend schools.

An E1 visa employee may travel abroad and will normally be granted a period of two years of automatic readmission once back in the United States. It is not necessary to file a new Form I-129, Petition for a Nonimmigrant Worker, with USCIS.

E1 Visa Grace Period

Under 8 C.F.R. 214.1(l)(2):

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

The goal of the 60-day grace period is to avoid a nonimmigrant in E-1 status from being deemed to have failed to maintain his or her nonimmigrant status only on the basis of ceasing the employment upon which his or her status was based. It is important to note that this 60-day grace period applies only once each petition validity period.

Contact a New York Immigration Lawyer for more information about the E1 Visa.