The E-1 visa category is reserved for Treaty Traders: nationals of a treaty country who intend to temporarily come to the U.S. with the purpose of performing supervisory, executive, or essential duties to carry on substantial trade principally with the United States.

How to Determine the Nationality of a Treaty Trader

Treaty countries are countries that have entered into a treaty of commerce and navigation with the United States. A list of eligible countries can be found in The Foreign Affairs Manual, a publication of the U.S. Department of State. Both the individual and the company he or she works for must be nationals of the same treaty country. An individual is considered a national of a treaty country if he or she has citizenship in that country. The nationality of a corporation is determined by the nationality of the owners of at least 50% of the company’s stock. However, foreign nationals with U.S. permanent residency do not count towards the company’s nationality.

• Tom, Dick, and Harry are brothers and nationals of Japan. Tom is also a U.S. permanent resident and resides in Chicago. The brothers have equal ownership of a technology company. In this case, the company does have Japanese nationality, due to both Dick and Harry’s shares. Tom’s share is not counted because of his U.S. permanent residency.

What is Substantial Trade?

Trade refers to the international exchange of goods, services, or technology. Substantial trade is a constant flow of international trade goods or services between the U.S. and the treaty country. The flow of trade items must be existing, continuous, and numerous. Substantial trade is based on three factors:

• Volume of Trade
• Number of Transactions
• Continued Course or Flow of Trade (to meet this criteria, the trade must be in existence before the E-1 application is submitted).

Substantial trade cannot be a single transaction, regardless of its dollar value or the length of time it takes. Monetary value of the overall trade is important in some cases, but it is not the only determinative factor. Frequency of transaction and continuous flow of trade are equally important factors of consideration. To establish an existing and continuous flow, it is important to have both past trade and commitments for future trade. Thus, a relatively small dollar amount can still represent substantial trade when the overall circumstance meets the requirements. On the other hand, a large dollar value may compensate a deficiency in other factors, and still qualify as substantial trade. Consider the following scenarios:

• A Swedish windmill manufacturing company made a single transaction, selling ten windmills to a Texas electrical company. The total trade was around $2 million per year. Even though the company sold ten windmills, it was still as single transaction. Since a single transaction, no matter how great in dollar value, cannot constitute substantial trade, this case fails to qualify.
• A Thai toy company sells its products to at least 12 hundred retail outlets in the United States. The company has contracts with these retailers that will hold this trade flow for the next five years. The total annual trade is $100,000. Even though this is a relatively smaller dollar amount, the company still meets the requirements of volume, number of transactions, and continued course of trade. Consequently, this was deemed substantial trade.
• Mr. Wong, a citizen of Canada, is the owner of a trading firm with two branches, one in Toronto and one in Chicago. The company buys pharmaceutical products from the country on one side of the border and sells them to the country on the other side. Its total cross border trade is around $80,000 a year. Mr. Wong’s application for an E-1 visa was denied on the basis that he failed to establish substantial trade between Canada and the United States. Specifically, the visa officer questioned how Mr. Wong’s annual salary of $50,000 would be paid if the total annual trade was only $80,000 per year.

Trading Principally with the United States

The U.S. branch of the corporation the applicant works for must have more than 50% of its total volume of international trade be between the United States and the treaty country.

Supervisory, Executive, or Essential Duties

Please note that E-1 visa is for principal business owner or employees in a supervisory or executive capacity, or possesses highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

Application Procedure
E-1 visa applications usually should be made through the U.S. Embassy or Consulate with jurisdiction over the alien’s permanent residence. While E-Visa applications can also be made at any other U.S. consulate, it may be more difficult to qualify when applying outside the applicant’s country. Please keep in mind each embassy or consulate may have its own rules on document presentation and application procedure. For instance, the U.S. Consulate Toronto has mandatory formatting instructions regulating organization, binding, dividers, and contents. They will not adjudicate cases that fail to comply.

Our Services
Z&A can help make sure you have the personnel needed to run your U.S. subsidiary. The E-1 visa is a perfect choice for both large commercial interests and small businesses. If you have any questions about your eligibility for an E visa, we invite you to email Attorney Daqin Zhang at @hooyou.com">dzhang@hooyou.com for a free consultation.

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