Who Qualifies for an E-1 Treaty Trader Visa?

The E-1 visa requirements come down to two things: nationality and trade. You do not have to invest a set amount, buy a business, or create jobs. You, or the company you work for, must carry on substantial trade that already exists, and more than half of that international trade must run between the United States and your treaty country. If both the nationality and the trade check out, you can live in the United States for as long as the trade continues and you keep your intent to leave when your status ends. Here is each element and what officers look at, and our E-1 treaty trader visa page explains how we build the file around it.

Is your country on the E-1 treaty list

The E-1 is available only to nationals of countries that have a qualifying treaty of commerce and navigation, or an equivalent agreement, with the United States. The State Department publishes the list and the date each treaty took effect. Do not assume that a country on the E-2 list is also on the E-1 list. Some countries qualify for one and not the other, because the two visas rest on different treaty provisions.

Nationality is determined by the treaty country’s own law, which usually means your passport. Dual nationals can apply under either nationality that qualifies, but must apply under the same nationality as the company. Permanent residence in a treaty country does not count. A U.S. green card holder cannot hold E-1 status at all, because E-1 is a nonimmigrant category.

The trader: you or your company

The treaty trader can be an individual who personally carries on the trade, or a company. Most E-1 cases today involve companies.

For a company, at least 50 percent of the ownership must be held by nationals of the treaty country. Those owners must either live outside the United States or be in the United States in E status. U.S. citizens and green card holders who share the nationality do not count toward the 50 percent, which can disqualify family companies where a parent has naturalized. Publicly traded companies are usually measured by where the shares are listed.

Once the company qualifies, it can bring its own staff to the United States in E-1 status, provided they share its nationality and fill an executive, supervisory, or essential role. Our post on E-1 visas for employees covers that side of the rules.

What counts as trade for an E-1 treaty trader

Trade means the international exchange of items of trade for payment, with title passing from one party to the other. Goods are the obvious case: a Japanese electronics distributor importing into the United States, or a Turkish textile firm selling to U.S. retailers. But services and technology count too. Consular guidance names banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, management consulting, and news gathering, among others.

The trade must already exist. A signed contract for future deliveries, or a plan to start exporting next year, is not enough. Officers look for completed transactions: invoices, bills of lading, customs entries, wire confirmations, and the contracts behind them. This is the biggest practical difference from the E-2, where you can qualify on an investment in a business that has not opened yet. Assembling that record is most of the work in an E-1 case.

Substantial and principal trade

Substantial trade means a continuous flow of sizable international trade, with numerous transactions over time. There is no minimum dollar figure. Officers weigh both the volume and the number of transactions, and they look more favorably on many regular shipments than on one large sale. For a smaller company, income from the trade should be enough to support the trader and family.

Principal trade means more than 50 percent of the trader’s international trade is between the United States and the treaty country. The measure is international trade, not total business. A company can do a great deal of purely domestic U.S. business and still qualify, as long as most of what crosses borders crosses this particular border. Our guide to what counts as substantial trade for an E-1 works through how officers measure both tests.

Your role and your intent to depart

An individual principal trader is coming to carry on the trade personally. An employee must fill an executive or supervisory role, or have skills essential to the company’s U.S. operations. A line employee with ordinary skills will not qualify, even if the company does.

E-1 status lasts for two years per admission, and you can extend in two-year increments or leave and return on a valid visa. There is no cap on extensions. You must, however, intend to depart when your E-1 status ends. That is a lighter standard than for a visitor, and it does not bar you from pursuing a green card later, but it should be planned rather than ignored.

Your spouse and unmarried children under 21 can accompany you as dependents, and they do not need to share your nationality. An E-1 spouse is employment authorized incident to status. Children can attend school but cannot work.

If your company invests rather than trades, the E-2 may be the better fit. Our E-2 treaty investor visa page covers that route, and our E-1 and E-2 comparison helps when a company could qualify for either.

If you are trying to work out whether your company’s trade meets the E-1 test, a consultation with Capitol Law Partners can review the numbers and the ownership before you apply. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our E-1 treaty trader visa services page or schedule a consultation.