E-1 Treaty Traders

​

The E-1 nonimmigrant classification allows a national of a treaty country to be admitted to the United States solely to engage in international trade on his or her own behalf. The treaty country means a country with which the United States maintains a treaty of commerce and navigation, or which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

​

Who May File for Change of Status to E-1 Classification:

If the treaty trader is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-1 classification.  

 

If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

 

How to Obtain E-1 Classification if Outside the United States:

A request for E-1 classification may not be made on Form I-129 if you are physically outside the United States. Interested parties should refer to the U.S. Department of State website for further information about applying for an E-1 nonimmigrant visa abroad. Upon issuance of a visa, the person may seek admission at a United States port of entry as an E-1 nonimmigrant.

 

General Qualifications of a Treaty Trader

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 which 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.

• See 8 CFR 214.2(e)(9) for additional examples and discussion.

 

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.

 

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.

 

General Qualifications of the Employee of a Treaty Trader

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

• Be the same nationality of the principal noncitizen 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.

 

If the principal noncitizen employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must either: (1) be maintaining nonimmigrant treaty trader status or (2) if the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.

 

Duties which 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 which 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 traders and employees will be allowed a maximum initial stay of two 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.

 

It's important to remember that all E-1 nonimmigrants must maintain an intention to depart the United States when their status expires or is terminated.

 

An E-1 nonimmigrant who travels abroad may generally be granted, if determined admissible by a U.S. Customs and Border Patrol Officer , an automatic two-year period of readmission when returning to the United States. 

 

Terms and Conditions of E-1 Status:

A treaty trader or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-1 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

• Relationship between the organizations is established;

• Subsidiary employment requires executive, supervisory, or essential skills; and

• Terms and conditions of employment have not otherwise changed.

​

USCIS must approve any substantive change in the terms or conditions of E-1 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the noncitizen’s eligibility for E classification, such as, but not limited to

• a merger;

• acquisition;

• sale of the division where the noncitizen is employed; or

• other event that affects the treaty trader or employee’s previously approved relationship with the treaty enterprise. 

 

Where there has been such a substantive change, the treaty trader or enterprise, if it wishes to continue to employ the noncitizen in E-1 status, must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty trader or affected employee.

 

The petition must include evidence to show that the treaty trader or affected employee continues to qualify for E-1 classification.  An employer who no longer employs an E-1 nonimmigrant is urged to inform USCIS of this upon termination of the E-1 nonimmigrant’s employment.

 

A treaty trader is not required to file a new Form I-129 to notify USCIS about non-substantive changes. A treaty trader or E-1 employee enterprise may seek advice from USCIS, however, to determine whether a change is considered substantive. To request advice, the treaty trader or enterprise must file Form I-129 with fee and a complete description of the change.

 

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty trader or employee’s ability to obtain E-1 status. 

 

Family of E-1 Treaty Traders and Employees:

Treaty traders and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty trader or employee.  Spouses and children may seek E-1 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. If the family members are already in the United States and seeking changes of status to or extensions of stay in an E-1 dependent classification, they may apply by filing a single Form I-539, Application to Change/Extend Nonimmigrant Status, with fee. 

 

Spouses of E-1 workers in valid E-1 or E-1S status are considered employment authorized incident to status, except for spouses of employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO), who continue to be required to apply for employment authorization.

 

DHS-issued evidence of such employment authorization, particularly that may be presented to employers for completion of Form I-9, Employment Eligibility Verification, include:

 

An unexpired Form I-94 with a notation reflecting E-1S nonimmigrant status. As of Jan. 30, 2022, USCIS and CBP began issuing Form I-94 with a new admission code for certain spouses of E-1 workers: E-1S. An unexpired Form I-94 reflecting this new code is acceptable as evidence of employment authorization under List C of Form I-9.

​

An unexpired Form I-94 with a notation reflecting E-1 nonimmigrant status, together with a notice from USCIS regarding the new admission code. USCIS will send E spouses with a Form I-94 issued by USCIS before Jan. 30, 2022, that was notated with E-1 nonimmigrant status and who are employment authorized incident to status, a notice regarding the new admission code that, together with an unexpired Form I-94 reflecting E-1 nonimmigrant status, serves as evidence of employment authorization for such spouses under List C of Form I-9. For more information, see this web alert.

​

An unexpired Employment Authorization Document (EAD). E spouses who are employment authorized incident to status are not required to request employment authorization by filing Form I-765, Application for Employment Authorization, but may still file Form I-765, with fee, in order to obtain an Employment Authorization Document (Form I-766 EAD). A Form I-766 EAD can be presented to employers as evidence of both identity and employment authorization acceptable under List A of Form I-9. 

 

An expired EAD with additional documentation to show the EAD is automatically extended. 

Certain E spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet the following conditions:

 

They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E nonimmigrant status; and

They have an unexpired Form I-94 showing their status as an E-1 or E-1S nonimmigrant.

Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the automatic extension period. Effective May 4, 2022, DHS is temporarily increasing the automatic extension period and providing up to 360 days of additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic EAD extension will therefore continue until whichever comes first:

 

The end date on the dependent spouse’s Form I-94 showing valid L-2 or L-2S nonimmigrant status, as applicable;

The date we approve or deny their application to renew the previous EAD; or

540 days from the “Card Expires” date on the front of the previous EAD.

Additional information on the temporary increase of the automatic extension period is available on the Automatic Employment Authorization Document (EAD) Extension page.

 

Eligible E spouses may present the following evidence of the automatic EAD extension to employers for Form I-9 purposes:

 

Form I-94 indicating the unexpired E-1 or E-1S nonimmigrant status;

Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17)”; and

The expired EAD issued under the same category, Category A17.

 

As discussed above, the E-1 treaty trader or employee may travel abroad and will generally be granted an automatic two-year period of admission when returning to the United States. Unless the family members are accompanying the E-1 treaty trader or employee at the time the latter seeks admission to the United States, or the family members separately travel abroad and return to the United States within the new readmission period, the new readmission period will not apply to the family members. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E status and apply for an extension of stay before their own validity expires.

​

If you have any questions, please let us know today.

Thank you!