E-1 for employees: who your company can bring to America

Nobody builds a trading business with America alone. Sooner or later the US company needs a sales director who knows the products, a technician who commissions the machines at the customer's site, or a controller who reconciles the numbers with headquarters. The E-1 has its own route for this: employees of an E-1 company can get an E-1 themselves. The conditions, though, are not what many people expect. What matters is not how long someone has worked for you, but which passport they hold, what role they take on and whether your company itself meets the E-1 requirements. This page shows who you can bring and where the limits are.

1Who qualifies as an E-1 employee

The immigration regulation names two groups. The first are employees coming to the US to take on duties of an executive or supervisory character. The second are employees in a lesser position whose special qualifications make their work essential to the efficient operation of the business. Anyone who neither leads nor is essential does not qualify, however valued a colleague they are.

Two further conditions apply to every employee. They must have the same nationality as the company they work for. A Swedish E-1 company can therefore bring Swedish employees, but not Polish or American ones on the E-1. And, like the trader, they must intend to leave the US when their E status ends.

Anyone who meets these requirements is treated just like the trader: the same visa, the same two years of stay per entry, the same family rules.

2The employer must qualify for the E-1 itself

Before looking at the employee, the consular officer examines the company. The Foreign Affairs Manual sets out three requirements. First, the employer must have the nationality of the treaty country: as an individual, in their own right; as a company, by being at least 50 percent owned by nationals of that country. Second, employer and employee must share the same nationality. Third, an employer who lives in the US must hold E status there.

A company's nationality is determined by the people who own it, not by where it was formed. A Delaware corporation owned by a company whose shareholders are Danish is a Danish company for E-1 purposes. If one company is in turn owned by another, every tier is examined, all the way to the individuals at the end of the chain.

Two special cases sink a lot of applications in practice. An owner who holds a green card cannot bring E employees to the US, and their shares do not count toward the company's nationality. And dual nationals have to choose: for E purposes a company has only one nationality, unless it is owned in equal shares by nationals of two treaty countries. In that case employees of either nationality can get an E visa. The table below shows typical setups.

Finally, the company must carry on the E-1 trade itself: substantial, already under way and more than 50 percent between the US and the treaty country. How that is measured is explained under E-1 requirements. If a US subsidiary meets this rule, it does not matter whether the individual employee also handles business with third countries or within the US. For a branch office, by contrast, the trade of the whole company counts.

3Executives and supervisors

The State Department's rules define executive and supervisory briefly. An executive position gives the employee broad authority to set the company's policy and direction. A supervisory position gives them responsibility for a significant part of the business and generally does not consist of directly supervising rank-and-file staff. In both cases the leadership role must be the primary, central function of the job, not a sideline.

The Foreign Affairs Manual tells officers what to look at: the title and place in the org chart, the duties, how much control the employee has over the business as a whole or a substantial part of it, how many people they manage and how qualified those people are, the salary and their prior leadership experience. It also gives an example worth remembering: the title Vice President or Manager can mean something in a large operation with many staff. In a small office with two people, the same title on its own says little.

For small US companies, this means: a sales director who in reality visits customers alone and writes quotes is not a manager for E-1 purposes. A sales director who builds a team, manages distributors and is responsible for US revenue can be. What decides it is what the org chart says and what the numbers show.

4Essential specialists

The second group are employees with special qualifications. There is no fixed formula here. The Foreign Affairs Manual states explicitly that essentiality cannot be decided by a mechanical test, only case by case. Officers look at the experience and training needed for the skill, how unique it is, whether workers with those skills are available in the US, what salary it commands, how well documented the employee's expertise is and what role they will fill. The burden of proof lies with the company and the employee.

Two clarifications help with planning. First, specialists do not need to have worked for you before. A company may need skills it does not yet have on the payroll. Second, during the start-up phase even ordinarily skilled workers can be essential if their essentiality comes from knowing the operation back home: the fitter who knows headquarters' equipment, or the employee who trains American colleagues in the processes. What is not enough, on the other hand, is speaking the home-country language and knowing its business culture. The regulation states explicitly that language and culture alone are not a special qualification.

5How long a specialist may stay

With specialists, the officer asks not only whether they are essential but for how long. This has to be shown afresh with every application. Some skills stay essential as long as the company exists, for example ongoing product improvement, quality control or a service not otherwise available in the US. Others are needed only for a short time, according to the Foreign Affairs Manual around one or two years to start up a business or train technicians.

The immigration regulation is even clearer on start-up specialists: they are presumed to complete their task within two years. Without special circumstances, they therefore get no extension. If you send a technician for the start-up, plan from day one who takes over afterward, and use that time to train American colleagues.

6Where the employee may work

An E-1 employee may work only in the activity for which their status was granted. For corporate groups there is an important relief: they may also work for the parent company or for the parent's subsidiaries without it counting as a substantive change, provided that at the time of approval it was documented where they will work, that the relationship between the companies exists, that the subsidiary itself qualifies as an E company and that the work there is executive, supervisory or essential.

If something fundamental changes at the employer, such as a merger, an acquisition or the sale of the division the employee works in, they need approval from USCIS or a new visa reflecting the new conditions. Minor changes that do not affect eligibility need no approval. And one limit is absolute: switching to a new employer without approval violates their status. The application costs are listed under E-1 costs.

7The application for employees

For employees outside the US, the application runs through the US embassy or consulate in their home country, just as it does for the trader. Each employee files the DS-160 and their own DS-156E. If your company is already registered with the consulate, their application builds on that review and the focus is on the individual. How the registration and the application package work is explained under Applying for the E-1.

The most important document is the company's letter. The State Department checklist sets out what goes into it: the role in the US company with title and duties, the executive or supervisory responsibility or, for specialists, their special role, the required education, work experience and career history. For specialists, the letter should also explain why no US citizen and no green card holder can fill the position. On top of that come an organizational chart of the US company and supporting documents such as diplomas and certificates.

If the employee is already in the US in another valid status, the company files Form I-129 with USCIS for the change of status. If you like, our Payroll service handles payroll and payroll tax for employees in the US. Everything else a posting involves is covered on the page on sending employees to the USA.

8E-1, L-1 or E-2 for your team?

The E-1 for employees isn't the only way to bring people into your US company. The L-1 has no nationality requirement, but it does require one continuous year of employment with the affiliated company abroad within the three years before entry. It is time-limited: seven years for managers, five for specialists. The E-1 has no maximum duration as long as the trade holds up, and it requires no prior employment. In return, it depends on nationality and on the company's trade.

If your company invests in the US rather than trading with it, the same employee rules apply under the E-2 for foreign employees. And if you want to keep your people for the long term, think about the green card early; the routes are explained under From E-1 to green card.

9Employees' families

An employee's family is covered by the same rules as the trader's. Spouses and unmarried children under 21 can come along or follow later, and their nationality doesn't matter. Spouses receive the E-1S annotation on entry and may work in the US based on their status alone. Children receive the E-1Y annotation, which carries no work authorization. How long the family may stay and what to watch for when they travel on their own is covered under E-1 validity, extension and family. For an overview of the whole visa, see the guide to the E-1 treaty trader visa.

In short

• E-1 employees must have the same nationality as the company, and at least 50 percent of the company must be owned by nationals of the treaty country.
• Executives, supervisors and specialists whose skills are essential to the company qualify; language and cultural knowledge alone are not enough.
• Specialists brought in for the start-up phase are usually considered done after two years and won't get an extension without special reasons.
• Switching to another employer without approval is a status violation; working for parent or subsidiary companies is allowed under certain conditions.
• If your employees have worked for the company at home for a year, the L-1 is often the better route.

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.
• PayrollPayroll, payroll taxes and filings for your employees in the USA.
• Form a CorporationThe US corporation (Inc) for growth, investors and your visa.