DavidsonMorris partners exclusively with NNU Immigration on US visa and immigration matters.
Before an individual E-1 visa application can be filed, however, the enterprise that is undertaking the trading activity must first be registered as an E-1 business. Without professional guidance, the petitioning process can quickly become demanding on applicants, increasing the risk of adjudication issues.
What is an E-1 visa?
The E-1 Treaty trader visa allows foreign nationals of a ‘treaty nation’ to enter the US to carry out substantial trade.
As a nonimmigrant classification, you are admitted to the US solely to engage in international trade on your own behalf. The E-1 visa permits you to work legally in the US for a US organisation where more than 50 per cent of the business is trade between the US and your home country.
What you need to know about the E-1 visa for Treaty Traders
On an E-1 visa, you are permitted to travel in and out of the US without restrictions. You may remain in the US on a prolonged basis with unlimited two year extensions as long as you continue to meet the E-1 requirements. You are also allowed to bring your spouse and dependants to the US, and your spouse is allowed to work in the US.
The E-1 visa application process is however thorough. You must submit substantial supporting documentation and attend an interview to prove you meet the strict eligibility criteria.
With so much at stake, it is important to seek legal advice early on the immigration options open to you for your specific circumstances, to avoid delays and errors, and to ensure your case is effectively represented to the US Government.
For US visa expertise – contact NNU Immigration, specialist US Attorneys based in London
Which countries are classed as ‘treaty nations’?
What are the eligibility criteria for employees of an E 1 Treaty Trader?
To qualify for E-1 classification, the employee of a treaty trader must:
- Be the same nationality as the principal foreign employer, who has the nationality of the treaty country
- Meet the definition of “employee” under the relevant law
- Either be engaging in duties of an executive or “supervisory character”, or if employed in a lesser capacity, have special qualifications.
If the principal foreign employer is not an individual, it must be an enterprise or organisation at least 50% owned by persons in the US who have the nationality of the treaty country.
These owners must be maintaining nonimmigrant treaty trader status. If the owners are not in the US, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.
Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.
Special qualifications are skills which make the employee’s services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement.
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.
What are the limitations of the E-1 visa?
You may only work in the activity for which you were approved at the time your E-1 visa was granted.
E-1 employees, however, may also work for the treaty organisation’s parent company or one of its subsidiaries provided the:
- Relationship between the organisations is established
- Subsidiary employment requires executive, supervisory, or essential skills
- Terms and conditions of employment have not otherwise changed.
The US Government must approve any “substantive change” in the terms or conditions of E-1 status. This could include a merger, acquisition, or major event which affects the treaty trader or employee’s previously approved relationship with the organisation.
The treaty trader or enterprise must notify the authorities of any such change. It is also permitted during the process to request an extension of stay for the treaty trader or affected employee, supported by evidence that the treaty trader or affected employee continues to qualify for E-1 classification.
What is classed as ‘trade’ under the E-1 visa requirements?
Trade is the existing international exchange of items between the US and relevant treaty country, which can include:
- International banking
- Technology and its transfer
- Some news-gathering activities
Can I bring dependants to the US on an E-1 visa?
Treaty traders and employees may be accompanied or followed by spouses and dependent children who are under 21 years of age.
Your spouses may apply for work authorisation by filing a Form I-765. If approved, there is no specific restriction as to where the E-1 spouse may work.
If your family members are already in the US and seeking change of status to or extension of stay in an E-1 dependent classification, they may apply by filing a single Form I-539.
How long can I stay in the UK under E-1 visa?
As a qualified treaty trader or employee, you may be permitted a maximum initial stay of two years.
Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.
You must however declare your intention to return to your home country at visa expiry.