Introduction to Treaty Visas, the E-1 Visa

The US has signed treaties of ‘Friendship, Commerce and Navigation’ with countries around the world. They are designed to promote trade and investment between the US and the other contracting state, with the idea that this will encourage good relations and peace. More recently, the US has entered into a number of Bilateral Investment Treaties with many former communist states. These treaties are designed to promote investment, but do not generally confer any trade-related immigration privileges.

Nationals, including both individuals and companies, of countries with such treaties can obtain what are called E-visas to work in the US in order to develop and direct their investment in and/or trade with the US. E-visas come in two types:

The E1 Treaty Trader:

Nationals from qualifying treaty countries who undertake a significant amount of international trade with the United States may qualify for an E-1 visa. The volume of their trade must be sufficient to justify the trader or his/her employees being present in the US to manage the trade. The level of trade must also constitute the majority of the trader’s international business meaning that more than 50% of their trade be with the US. While there is no official minimum level of trade which is considered sufficient to qualify for the E-1 visa, the lower the volume of trade, the less likely one is to qualify.

E1 Visa Countries

The following countries have treaties with the US that allow qualifying nationals to apply for Treaty Trader status:-

Argentina	China (ROC)	France	Italy	Netherlands	Sweden
Australia	Colombia	Germany	Japan	Norway	Switzerland
Austria	Costa Rica	Greece	Korea	Oman	Thailand
Belgium	Denmark	Honduras	Latvia	Pakistan	Togo
Bolivia	Estonia	Iran	Liberia	Philippines	Turkey
Brunei	Ethiopia	Ireland	Luxembourg	Spain	U.K.
Canada	Finland	Israel	Mexico	Suriname	Yugoslavia

Nationals of these qualifying countries may apply for an E1 visa in order to ‘Develop and Direct’ import/export trade between their own country and the US. It is also possible to apply for E1 visas for key managerial and specialist employees. The E1 visa is different than the L1 visa in that there is no requirement for such employees to have worked for the Trader for at least one year in the last three.

E1 visa registration applications focus on the volume of trade between the US and the qualifying Treaty country. The prospective Treaty Trader must demonstrate the following:

• There will be a substantial number of trade transactions between the US and the treaty country.
• There will be a substantial dollar value to the trade between the US and the treaty country.
• More than 50% of the international trade transactions undertaken by the applicant will be between the US and the treaty country. This applies only to trade between the two countries and does not apply to trade within the national borders of either country.
• More than 50% of the dollar value of trade will be between the US and the treaty country.
• The trader, including his/her employees seeking E1 visas, has sufficient business acumen and experience to develop and direct the trade in the event that the visa is granted.
• The trader and any other E1 staff are able and willing to leave the US upon the termination of their E1 status.
• The trader has developed a history of conducting trade between the US and the qualifying treaty country.

E1 Employees

Once the principal applicant has obtained registration as a Treaty Investor or Trader, it is relatively easy to obtain E visas for the qualifying employees. Obtaining the registration for these employees usually takes 4 to 6 weeks and obtaining subsequent employee visas usually takes 10 to 15 working days.

Two types of employees qualify for E visas:

1) Executives & Managers:

Executives and Managers should be going to the US to develop and direct the trade or investment of the principal investor/trader in the US. These employees should be able to demonstrate their executive or managerial background, but, unlike the L1 visa, there is no requirement that they have worked for the principal trader or investor for at least one year.

2) Specialist or Essential Skilled Workers:

Visas for this type of employee are somewhat more difficult to obtain than those for executives and managers. In order to qualify, one must demonstrate the following:

1. A US resident worker could not fill the position;
2. The employment of the treaty national is necessary for the running of the principal trader or investor’s business in the US;
3. US workers will be trained to replace the treaty national at the culmination of the visa status. Details of the proposed training of US workers must be outlined.

Even if these qualifications are met and an E-visa is obtained, it is also more difficult to renew a visa for this type of employee than for an Executive/Managerial E-visa.

E-visa employees must be of the same nationality as the principal investor or trader.

The dependents of E-visa workers are also issued E-visas, but these visas are not good for employment.

Frequently Asked Questions About Treaty Visas

Is it possible to gain E status as a self-employed professional?

No it is not. The principal applicant needs to be going to the US to ‘develop and direct’ his/her trade or investment. E-visas are not meant for people looking to be a factor of production or trade in his/her own right. As a result, accountants, IT consultants, doctors, and lawyers for example cannot obtain E status in the attempt to practice their profession in the US.

How long can I stay in the US in E status?

With an E-visa, you may stay in the US indefinitely, provided the level of international trade or the value of your investment in the US remains sufficient to justify your remaining there. E-visas are initially valid for anywhere between two and five years, but can be renewed any number of times.

Why isn’t my country eligible for E status?

Your country may not agree to provide a reciprocal visa for US nationals in your country. Generally, the treaties that give rise to E-visas are made with countries on a reciprocal basis in that they will also entitle US nationals to obtain similar immigration rights in the co-signatory’s country. As a result, countries with restrictive inward investment policies or currency controls are less likely to have a treaty of this nature with the US. Furthermore, the majority of recent treaties signed by the United States have been entered into with the former Communist countries and are generally Bilateral Investment Treaties, conferring only E2 eligibility on nationals of the other contracting state. In addition, existing treaties may be suspended if the US relationship with the other treaty signatory deteriorates or if that country is subject to international sanctions, for example.

Is there a minimum amount of trade or investment needed to qualify for an E-visa?

No, but the lower the amount of trade or investment the poorer the chances are that the application will succeed. That being said, the amount necessary to qualify will depend on the type of business or trade engaged in.

Are there any alternatives if I or my employees do not qualify for E-status?

The L1 intra-company transfer visa and the H1B specialty occupation visa are possibilities. The EB-5 Immigrant Investor is an option which eventually leads to US permanent residency, but it is extremely difficult and time-consuming to obtain.

Can E-visa dependents work?

E dependents can obtain a general work authorization by filing an I-765. This form must be applied for separately from the E-visa application.

Misrepresentation of Material Facts or Fraud

If you attempt to obtain a visa through a willful misrepresentation of a material fact or by fraud, it may result in the permanent refusal of a visa and/or denial of entry into the U.S.

Visa Ineligibilities and Waivers

There are certain activities that can make you ineligible for a U.S. visa both now and into the future. The Nonimmigrant Visa Application, Form DS-156 or Online Form DS-160, lists some categories of persons who are ineligible under U.S. law to receive visas. There are cases wherein an applicant who is ineligible, but who is otherwise properly classifiable for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.

Visa Denials

If a visa application is denied, the applicant can apply again only if there is new evidence that can overcome the reason for the initial denial.

U.S. Port of Entry

While a visa allows a foreign citizen to travel to any U.S. port-of entry and request permission to enter, applicants must be aware that a visa does not guarantee entry into the U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S and if you are allowed to enter, they will also determine the length of your visit on the Form I-94.

It is very important to keep the I-94 in your passport as it is your authorization to stay in the US. There is plenty of information available regarding restricted or prohibited goods in the United States, so prospective travelers should review this information on the CBP website before making plans to enter the US.

The Effects of Staying Beyond Your Authorized Stay in the U.S.

If you are to stay in legal status in the US, you must depart on or before the last day you are authorized to be present in the U.S. This date will be found on your I-94. If you fail to depart by that date, you will be out-of-status and will be in violation of immigration laws. This may cause you to be ineligible for a visa for return travel to the U.S. in the future. At the very least, your visa will be automatically voided (INA 222(g)). Generally, this will require you to reapply for a new nonimmigrant visa in your country of citizenship.

General Visa

Visas are never guaranteed. As a result, final travel plans or the purchase of non-refundable tickets are not recommended until your visa has been issued.

Except for the case in which a visa is cancelled, it is valid until the expiration date on the visa itself. Be careful, therefore, not to remove the visa page from an expired passport if the visa is still valid. You may show the old passport with the valid visa along with a valid passport for travel and admission to the U.S.

Family Members

Spouses and unmarried children under 21 years of age may receive what is called derivative E visas and may travel with the principal visa holder to the US. Spouses and unmarried children do not have to be of the same nationality as the principle visa holder and do not have to be from a country on the E1/E2 list. The spouse of an E visa holder may apply to DHS for employment authorization. Dependent children of an E visa holder are not authorized to work in the U.S.

How Do I Extend My Stay?

If you wish to stay beyond the date indicated on your Form I-94, you must seek an extension with USCIS. Information can be found on the USCIS website.

How Do I Change My Status?

It is possible for some nonimmigrant visa holders to change their status from one visa classification to another while they are in the US. It is recommended that you apply for a change of status with plenty of time before your present visa expires so that you have time to make travel arrangements in case your change of status request is denied.

Further Inquiries

If your inquiry concerns a visa case in progress overseas, you should first contact the U.S. Embassy or Consulate handling your case for status information. If you have further questions, feel free to contact our office.

Employer

If the individual applying for the E1/E2 visa is relying on an employer’s substantial trade, the employer must be a citizen of the treaty country. An employer who’s residing in the US must also maintain treaty trader status.

“Trade” in Regards to the E1 Visa

For the purpose of the E1 visa, “trade” refers to the exchange, purchase or sale of goods or services between the US and the treaty country. Goods and services includes technology, monies, international banking, insurance, transportation, tourism, communications, some news gathering activities, data processing, advertising, accounting, design and engineering, management consulting and technology, but is not limited to these categories.

“Substantial Trade” in Regards to the E1 Visa

Substantial trade does not refer to a specific dollar amount, but instead refers to the total volume of international trade done by the applying company between the home country and the United States. If it is a small fraction of the total trade done by that company, it may not be sufficient, even if the dollar value of that trade is high. Generally, more than half of the total volume of international trade conducted by the treaty trader must flow between the US and the treaty country from which the treaty trader is a national.

 

Contact Us for Help with your E-1 Visa Application

Please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney.  Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation are open 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.  Free immigration consultation and advice within 24 hours guaranteed.