[author: Kalani Hawks Villafranca]
The U.S. immigration system can be both complex and tedious, but for anyone involved in international trade with the United States the E-1 International Trade Visa offers a swift and effective path to U.S. immigration status. The E-1 Visa allows individuals engaged in international trade between the United States and their home country to live and work in the United States to pursue their international trade efforts. The E-1 visa is typically issued for an initial period of 2-5 years, and can be renewed indefinitely, as long as the international trade continues.
The E-1 visa is a fantastic option for both international business people and their families, because of the flexibility inherent in this visa category. E-1 visa holders may move freely between the U.S. and their home countries, living and working wherever best suits their business and personal situation. Families enjoy a fantastic quality of life while in the U.S. in E-visa status because E-1 spouses have valid work authorization in the U.S. and children may attend U.S. public schools tuition free.
Anyone involved in international trade with the U.S. should consider the E-1 visa. As the lesser known sibling of the E-2 investor visa, the E-1 is often an overlooked option. Clients involved in international trade frequently come to my office seeking an E-2 investor visa, only to discover that the E-1 visa is a much better fit for their situation. For those who are eligible, the E-1 is usually a top choice because 1) the applicant can be eligible through either a U.S. or foreign business, 2) the applicant does not have to invest any money, and 3) there are no company profitability targets that need to be met or maintained. This makes the E-1 import/export visa a fast, flexible, and powerful option for anyone involved in international trade.
Requirements: To qualify for an E-1 Visa, an applicant must meet all of the following, as outlined in the U.S. Foreign Affairs Manual, 9 FAM 402.9-5(A):
1. There must be a treaty between the U.S. and the applicant’s country of citizenship
The U.S. has treaties of trade and commerce with most countries in western Europe, but only some of the countries in eastern Europe, Asia, Africa and Latin America. For example, Mexico and Colombia have treaties with the U.S. that provide for E-1 visas, while Peru and Venezuela do not. Each treaty has its own unique requirements, and the treaty governs both if an E-1 visa is available and the validity period of that visa.
Before moving forward with an E-1 case, we must ensure that the applicant is from a treaty country. The Department of State maintains a list of E-Visa Treaty Countries, with detailed information about which countries have E-1 treaties and any limitations on those treaties. Clients with dual nationality may qualify based on a nationality from a treaty country, even if their country of birth or current residency is not a treaty country.
2. The E-1 visa company must be at least 50% owned by individuals from the treaty country
Any U.S. or foreign business owned by nationals from the treaty company can qualify as an E-1 business. Regardless of where the company is incorporated, at least 50 percent of the business must be owned by nationals of the treaty country. Individuals from a treaty country who also hold citizenship or green card status in the United States may not count as treaty country owners.
An Example: Let’s assume a U.S. company is owned by 4 Canadians, each at 25%. If 2 of the Canadian owners are also U.S. citizens, then the company can be an E-1 treaty company because 50% of the owners are Canadians with no U.S. citizenship or residency. But if 3 of the 4 owners are dual USA citizens, the company cannot be an E-1 business, because 75% of the ownership is in the hands of citizens of the United States.
The E-1 applicant can be an owner, if they own at least 50% of the business and have the right to control the operations. Minority owners from the treaty country may still apply, but must do so as executives or employees with special qualifications unique to the business operations. Keep in mind that if an applicant owns less than 50% of the business and qualifies as an executive or essential employee, the business must still be owned at least 50% by individuals from the treaty country. In many cases, several workers can come to the U.S. based on a single qualifying international trade business using a combination of visas for owners, executives, and specialized employees.
3. The company must be engaged in substantial international trade of goods, services, or technology
The E-1 company must be engaged in substantial, ongoing trade with the U.S. before applying for the E-1 International Trade Visa. Trade is defined very broadly and can include both goods and services, and can involve either import to or export from the United States. A strong case could involve the export of food from the U.S. to Canada or the import of software services from Mexico to the U.S. The E-1 has long been an important tool used by Mexican and Canadian businesses to facilitate trade among USMCA trading partners and a recent increase in nearshoring has also resulted in increased demand for E-1 visas for Mexicans and Canadians.
To qualify as substantial trade for E-1 purposes, the trade must be in existence, continuous, and likely to continue. There is no minimum amount of international trade required by the law, and the law supports E-1 cases for small trading companies as long as the trade is sufficient to ensure a continuous flow of international trade between the U.S. and the treaty country. An E-1 visa cannot be based on a single transaction, regardless of how protracted or monetarily valuable.
For small businesses, trade may be seen as substantial if it will produce a profit sufficient to provide a reasonable income for the visa applicant and living expenses for the applicant and his or her family while they live in the U.S. We’ve received approvals for companies with a range of trade values, from $100,000 to $16 Million in a 12 month period. For E-1 approval, the number of transactions and consistency of trade is more important than the monetary value.
4. The international trade must be principally between the United States and the treaty country
To qualify for an E-1 visa, the company must show that the majority (more than 50%) of its international trade is between the U.S. and the treaty country. This is a critical point for the applicant and E-1 company to understand, because companies that engage in international trade with numerous countries may not be eligible for an E-1 International Trade Visa with the United States.
Hopefully, the company’s domestic market is not considered international trade and a company’s domestic sales are therefore not counted as trade for the purposes of E-1 eligibility. If a Mexican company exports cookies to the United States, and also sells cookies in Mexico, this domestic trade is irrelevant. We must know where else the Mexican company exports its cookies. If it only trades with the U.S., we have qualifying trade because it is principally (and only) between the U.S. and Mexico. If the Mexican company also exports to Canada, the UK, and Australia, we must know the volume of trade with each country and to prove E-1 eligibility must show that U.S. trade occupies at least half of the total international trade for the Mexican company.
Companies seeking to expand into multiple international markets must carefully consider the limitations of the E-1 visa before proceeding. If a company is currently eligible for an E-1 visa, but U.S. trade is only a portion of its total international trade, it must take care to ensure that U.S. trade percentage stays above 50% to maintain E-1 visa eligibility. Companies whose international trade with the U.S. drops below 50% will no longer be able to maintain E-1 visa status.
5. Applicant intends to depart the United States when the E-1 status terminates
Because the E-1 visa is a Nonimmigrant Visa, all applicants must demonstrate their intent to depart the U.S. upon the expiration of their E-1 International Trade Visa. While applicants are not required to maintain a residency abroad, those who have homes or business in their home countries have an easy way to show their intent to return. I ask all my clients to submit a sworn statement pledging not to violate their immigration status. In practice, this criteria is rarely an issue for professional clients who have established careers and business interests.
Process & Time Frame for Approval
E-1 International Trade Visa applications are submitted directly to the U.S. consulate located in the applicant’s home country. Though the law applies equally in all jurisdictions, each U.S. embassy or consulate has its own rules for how the application should be prepared and submitted.
Processing times vary wildly, from a few weeks to a year or more. For example, the U.S. consulate in Monterrey, Mexico is currently processing cases in 6 weeks, while the U.S. Embassy in Bogota, Colombia hasn’t issued interview notices in over 3 years due to COVID backlogs. Due to the wide variety of processing times, it is imperative that the applicant understand the current time frame in their home country before proceeding with a case.
Before the E-1 visa is issued, the applicant and family members attend an interview at the U.S. Consulate or Embassy where their case is pending. All applicants (including children) must have their own passport, which must be valid for at least six months from the date of approval. The immigration officer typically notifies the applicant of the decision during the interview, and, if approved, the visa is produced in the applicant’s passport in the following two weeks.
Next Steps
A fast, flexible, and renewable option, the E-1 is ideally suited to support owners and key executives who want to work in the U.S. to further the international trade operations. Both U.S. businesses and foreign entities can qualify, and any trade in goods or services is sufficient if the trade flows primarily between the U.S. and an E-1 treaty country.
If your company is already engaging in international trade with the United States, or plans to do so in the near future, you must consider an E-1 visa. I help my clients navigate this path every day, and have seen the meaningful difference it can make in their person lives, careers, and the future of their companies.
