Treaty Trader Visas
THE E-1 TREATY TRADER VISA CATEGORY
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
See the "List of E-1 Treaty Countries" below to see if
your country of citizenship may qualify you as an "E-1"
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
"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
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
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.
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
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
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
[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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for our email address.
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