An E-1 is a visa is for a foreign national of a “treaty trader” country, coming to the US to carry on substantial trade occurring principally between the US and the foreigner’s country of nationality. This visa may also be obtained by key employees of the business. Key considerations include: i) whether the foreigner is a national for a country that has an E-1 trade treaty, ii) that the business is 50% owned by foreigners of the treaty country, iii) that the foreigner is either a 50% owner or a key employee of the company, iv) that and that the company’s trade is “substantial.”
Volume 9 of the Foreign Affairs Manual, section 41.51, Ex. 1. If the foreign national’s country is not on this list, then E-1 is not an option.
Establishing that at least 50% of the US business is owned by eligible foreigners obviously depends on the nationality of the owners. Interestingly enough, however, is that if one of the owners is a US lawful permanent resident, that person’s ownership is not considered to be that of a foreigner, even if that person is a citizen of a qualifying treaty trade eligible country.
While an owner who owns at least 50% of the US business is eligible for E-1, “key employees” are also eligible. A key employee must prove that they are either an “essential skills” worker whose skills are essential to the trading enterprise or key executives.
Proving “substantial trade” is not a precise art because the regulations do not specifically define “substantial.” One necessary factor, however, is that at over 50% of the company’s trade takes place between the US and a treaty trade country. A specific dollar amount isn’t required, but generally $200,000/year of trade volume can be considered a minimum. Trade frequency is also considered a factor. The frequency should be in regular intervals.
When can I Obtain an E-1 Visa?
Unlike H-1B visas, there is no quota on the number of E-1 visas which may be issued every year, therefore it can be obtained any time of the year. Premium processing, in which the petition will be processed within 15 calendar days, is also available.
What are the Advantages and Limitations of an E-1?
An advantage of the E-1 visa over work visas like H-1B is that it does not require any specific educational background. You may also travel in and out of the US or remain in the US continuously until your E-1 visa expires. The E-1 visa may initially be valid up to 5 years, with the possibility of 2 year extensions. The duration of status, however, can only be for a maximum of 2 years, which means that the E-1 visa holder has to depart the US and reenter to extend their status or apply for an extension of status by filing such an application in the US. A big advantage over H-1B and L-1A/L-1B is that you may extend the E-1 indefinitely. Some people consider it close to having green card status.
One limitation to E-1 is that it is a “semi-dual intent” visa. The Department of State believes it is not a dual intent visa, therefore, if you seek a visa from a consulate/embassy, and you have a green card petition pending, you are unlikely to obtain the visa. The US Citizenship and Immigration Service, however, does recognize E-1 as dual intent, therefore it is possible to obtain E-1 status extensions in the US while a green card petition is pending. Another limitation is that dependents in the US are unable to obtain work authorization.