Applying for the E-1: first your company introduces itself to the consulate, then you do

The E-1 isn't granted because someone has a good business plan. It's granted because a company already trades substantially with America today and can prove it. That makes the application above all an exercise in evidence: a consular officer examines your company, your trade and your role, and does so on paper before ever meeting you. This page shows how the process works, which forms you need, what belongs in the binder and where applications typically get stuck. What the E-1 is in principle is covered in the guide to the E-1 treaty trader visa.

1Two routes to the E-1: consulate or change of status

There are two procedures for the E-1, and which one applies to you depends solely on where you are right now.

You're outside the USA. Then you apply for an E-1 visa at a US embassy or consulate. There's no petition to the immigration agency USCIS in this case: USCIS states explicitly that you can't apply for E-1 classification on Form I-129 while you're physically outside the USA. You enter with the visa in your passport, and the border officer grants you E-1 status at the port of entry. For almost everyone reading this page, that's the normal route.

You're already in the USA in another valid status. Then you can file Form I-129 with USCIS to change to E-1 status; for an employee, the qualifying company files. A spouse and children already in the country apply for their derivative status on a single Form I-539. An approved change of status isn't a visa, though. It lets you stay, but not re-enter after a trip abroad. For that, you'll still need the visa from the consulate later. More on this below.

If you entered on ESTA, plan on the first route. The regulation explicitly excludes visitors who entered under the Visa Waiver Program from changing status. So from ESTA, the way to the E-1 always runs through the consulate.

3Company first: registering with the consulate

This is the biggest difference from an ordinary visa application. Many consular sections that handle a lot of E visas run a registration process for companies. The Foreign Affairs Manual, the State Department's binding instructions for consular officers, describes it like this: a registered company is one that was already found E-qualifying in an earlier E application, for whose trader or employee an E visa was issued, and whose registration with the post is current. The database holds details such as the number of employees in the USA, the volume and number of trade transactions with the treaty country, operating results and nationality. There's no minimum number of E employees, and the registration is meant to be reviewed at least every five years.

Consulates that work this way review the company and the individual together on the first application: you submit the application for the company and for yourself as the trader, the consulate reviews the documents and then contacts you to schedule the interview. Once the company is registered, later applications from its employees rely on that review, as long as nothing material has changed in the business. That's what makes the first binder so important: it's not just your application but the foundation for everyone you bring over later. How this works for your team is explained under E-1 for employees.

The consulate sets the format, the order of the tabs and the submission method on the application page of its official visa service provider, and it may refuse applications that deviate from them. Read these requirements on the day you submit, not from a template a friend used years ago.

4The forms: DS-160 and DS-156E

Every applicant completes the DS-160 online, the general nonimmigrant visa application. That applies to you, your spouse and each child. The trader and every E-1 employee also file the DS-156E, the supplementary application for treaty traders and treaty investors. Spouses and children don't need it.

At its core, the DS-156E is a company profile. Part I asks for the legal form, date of formation, type of business, nationality of the owners and the financials. What matters most for the E-1 is the trade table: imports from the treaty country into the US company, exports from the USA to the treaty country, trade with third countries and domestic US production, each with a dollar value and, optionally, the number of transactions. From exactly these lines the officer reads whether more than half of your international trade is between the USA and your treaty country. Part II covers staff, Part III the individual. First-time applicants complete Parts I and II in full, and both are updated regularly. How the 50 percent calculation works is shown on the page on E-1 requirements.

The application fee for E visas is $315 per applicant. Whether a further fee is due on issuance depends on your nationality. All amounts and worked examples for families are under E-1 costs.

5The document binder: evidence, not claims

The binder is the heart of the application. The State Department gives its officers a checklist that shows what they look for, and it explicitly asks applicants to organize documents with tabs and a table of contents and to highlight the key figures in financial statements. The DS-156E also calls for a binder with a table of contents and tabs.

It opens with a cover letter that addresses each requirement in turn: nationality, existing and substantial trade, more than 50 percent of international trade with the USA, your executive role or essential skills, and your intention to leave the USA when your status ends. Then comes the evidence, tab by tab. The table below shows which documents typically prove which requirement.

Almost everyone underestimates two things. First: trade has to be traceable. The law requires an identifiable exchange in which title to the goods or services passes from one party to the other. A spreadsheet of annual sales doesn't prove that; a series of invoices with bills of lading and incoming payments does. Second: a company's nationality is determined by the people who ultimately own it, not by where it was formed. If your US corporation is owned by a European company that is in turn owned by a holding company, you disclose the ownership at every level, down to the individuals at the end of the chain. Shares held by green card holders don't count.

Your own office isn't a requirement. The Foreign Affairs Manual says explicitly that you don't necessarily need physical office space for an E visa, even though it can play a role in the assessment.

6The interview

Once the consulate has reviewed your file, the personal interview follows. The officer has a lot of discretion here: the Foreign Affairs Manual describes the list of requirements as long and many of the standards as a matter of judgment and discretion. The burden of proof is on you. If your classification is in doubt, the officer may ask for any document that clears up that doubt.

The questions cover what is in your file: What does your company trade, with whom and at what volume? What role will you take on in the US? Who runs the business at home? And what happens when your status ends? On that last question, one sentence from the Foreign Affairs Manual puts many minds at ease: an E applicant does not have to keep a residence abroad. You may sell your house and take your entire household with you. A clear statement that you will leave the US when your E status ends is usually enough. It is different if an immigrant petition has already been filed for you; then you have to convince the officer that you still intend to leave. What this means for your plans is explained in From E-1 to green card.

7After approval: visa, entry, two years

How to extend your status, how the visa is renewed and what applies to spouses and children is covered on the page E-1 validity, extension and family.

8Changing status inside the US

If you are already in the US in valid status, for example on another work visa, the change to E-1 can go through USCIS. The company, or you as the trader, files Form I-129; your family files Form I-539. For an extra fee you can speed things up: with Premium Processing, USCIS decides an E-1 case within 15 business days or requests further evidence within that time.

The catch is the one we mentioned above: approval gives you a new status on Form I-94, but no visa. If you leave the US, you need an E-1 visa to come back, and you get that from a US consulate abroad. If you travel a lot, the consular route is often the better choice from the start.

9Where applications fail

Most problems have nothing to do with paperwork errors and everything to do with the substance of the case. The most common pitfalls, each with the rule behind it:

• The trade does not exist yet. The E-1 requires trade that is already underway. If you want to go to the US to find trading partners, you do not qualify. Binding contracts that call for immediate exchange do, however, count as existing trade. If you want to invest and build something, look at the E-2 investor visa.
• The trade runs through the wrong entity. What counts is the trade of the legal entity acting as the trader. A branch is not a separate entity; for a branch, the trade of the whole company it belongs to counts. A subsidiary, on the other hand, is a separate entity, and its own trade counts. Whether your US company should be a Corporation and how it relates to the parent determines the numbers in your DS-156E.
• Half the trade goes elsewhere. More than 50 percent of the international trade must take place between the US and your treaty country. A company that mainly ships to Asia and serves the US on the side does not meet this test as a whole.
• The owners have the wrong nationality. At least 50 percent of the company must be owned by nationals of your treaty country. Green card holders do not count.
• The role stays vague. A title like managing director means little in a two-person office. The officer wants to see what you actually run.

If your case hinges on one of these points, look at the alternatives before you put your file together. If you have a company at home that can send you over, the L-1 visa is often the faster route. Which company you need in the US and in what order to proceed is set out in the visa roadmap with company formation; without a formation, there is the visa roadmap on its own.

In short

• From outside the US, you apply for the E-1 as a visa at the consulate; Form I-129 with USCIS only comes into play if you are already in the US in valid status.
• Your file proves nationality, existing substantial trade, the 50 percent rule and your role; the burden of proof is on you.

How we help you

• Visa Roadmap for Company FormationFormation and visa in one plan, so the company carries the visa.
• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.
• Form a CorporationThe US corporation (Inc) for growth, investors and your visa.
• US Company FormationLLC, Inc or LP in Delaware, Florida, California, New York, Texas or Wyoming.