E-1 Treaty Traders Mean Business
E-1 Treaty trader: Visa for the international business person
The B-1 visa and its ESTA equivalent enable employees of international businesses to visit the USA in furtherance of trading relationships--to meet with clients, negotiate contracts, and attend conferences. As long as the stay is limited and the business conducted is limited to essentially liaison activities, the B-1 and ESTA are a great, economical means of maintaining an ongoing trading relationship. Sometimes, however, a more durable or more flexible presence is required. In such cases, businesses should consider the E-1 Treaty Trader visa.
By regulation, the E-1 visa is specifically for "individuals who will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien's behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national."
Like the E-2 Treaty Investor visa, the E-1 Treaty Trader visa is only available to nationals of countries that have a bilateral treaty with the United States that enables such visas to be issued. That's why it is called a Treaty Trader.
In the UK, the treaty that enables E visa eligibility is the United Kingdom Friendship, Commerce, and Navigation Treaty of 1948 governing trade between the United States and The United Kingdom. Notably (and unique among such agreements), the UK-US treaty specifically limits eligibility not just to UK nationals, but to UK nationals residing in the UK. This can become cumbersome when dealing with complex corporate ownership issues or when individuals have spent significant periods of time outside the UK.
Looking at the elements of the regulatory requirements, the essential elements are: 1. Nationality of the treaty trader or employee visa applicant; 2. Sole purpose is to carry on trade; 3. the trade is substantial in nature; 4. the trade is international in scope; and 5. it is principally between the US and the foreign state. One further requirement is that, as the E-1 is a nonimmigrant visa, the visa applicant indicates his/her intention to depart the United States upon the termination of E-1 status.
Nationality of applicant
As noted above, the question of nationality is fairly straightforward for individuals, but can be complicated for businesses. Ultimately business ownership is determined by its shareholders. For E visa purposes, 50% ownership by the desired treaty nationality is all that is required. For employees, nationality is straightforward (a passport will establish nationality), but not all employees may be eligible for an E-1 visa. First, the nationality of the employee must be the same as the treaty trader (e.g. if the treaty trader is a UK business, the employee must be a UK national). Second, the employee must perform either an executive or supervisory function, or must have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise.
A threshold question is "What is trade for E-1 purposes?"
State Department guidance provides as follow:
The term "trade" means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other.
“Items of trade” are not limited to goods. State Department guidance suggests inclusion of goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities; it also notes that it’s list is not exhaustive.
What make trade substantial? It’s relative. State Department guidance says that it ”entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country.” The guidance explains:
This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.
In other words, numerous transactions are viewed as more substantial than one or two large ones.
That trade is “international in scope” speaks for itself; it must be trade between the treaty country and other countries. For the UK, even as a member of the EU, trade between the UK and other single market (EU) countries counts for E visa purposes.
Principally between the US and the Treaty Country
Trade is considered to be principally between the United States and the treaty country when over 50% of the volume of international trade of the treaty trader is conducted between the United States and the treaty country. Significantly, this is limited to the international trade; thus, where a business may have significant domestic trade, it is irrelevant for E-1 purposes—all that matters is the international trade.
Intention to depart the US
Finally, the E-1 visa applicant must affirm his/her intention to depart from the United States upon the termination of E-1 status. This is done simply by providing a signed statement.