The E-1 non-immigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States as a foreign worker.

Conditions required by the company?

To qualify for E-1 classification, the treaty trader must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation;
• Carry on substantial trade; and
• Carry on principal trade between the United States and the treaty country that qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade include but are not limited to:

• Goods
• Services
• International banking
• Insurance
• Transportation
• Tourism
• Technology and its transfer
• Some news-gathering activities.

Substantial trade generally refers to an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. The continuous flow contemplates numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is a relevant factor in considering substantiality, greater weight is given to more numerous exchanges of greater value. For smaller businesses, the income derived from the value of numerous transactions which is sufficient to support the treaty trader and their family is a favorable factor.

Concretely, principal trade between the United States and the treaty country exists when over 50% of the volume of international trade of the treaty trader is between the United States and the treaty country of the treaty trader’s nationality.

Conditions required by the employee

To qualify for E-1 classification, the employee of a treaty trader must:

• Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
• Meet the definition of “employee” under relevant law
• Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications that make the employee’s services essential to the efficient operation of the treaty enterprise.

Duties that are of an executive or supervisory character are those that primarily provide the employee ultimate control and responsibility for the treaty enterprise’s overall operation, or a major component of it.

Special qualifications are skills and/or aptitudes that make the employee’s services essential to the efficient operation of the treaty enterprise. There are several qualities or circumstances that could, depending on the facts, meet this requirement. These include, but are not limited to:

• The degree of proven expertise in the employee’s area of operations
• Whether others possess the employee’s specific skills
• The salary that the special qualifications can command
• Whether the skills and qualifications are readily available in the United States

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.

Period of Stay

Qualified treaty employees will be allowed a maximum initial stay of five years. Requests for extension of stay in, or changes of status to, E-1 classification may be granted in increments of up to two years each. There is no limit to the number of extensions an E-1 nonimmigrant may be granted. All foreign workers who have an E-1 visa must however maintain their intention to depart the United States when their status expires.

Family of E-1 Treaty Traders and Employees

Employees of qualified treaty companies may be accompanied or followed by their spouse and unmarried children who are under 21 years of age. Their nationalities does not need be the same as the employee. These family members may seek E-1 non-immigrant classification as dependents and, if approved, they will generally be granted the same period of stay as the employee. Please note that their spouse may also obtain an open work visa.