E-1 visa requirements: lots of trade, over half of it with the USA

The E-1 is the visa for entrepreneurs who already trade with America. It doesn't ask for an investment, but it does ask for trade that flows: many transactions over time, with more than half of them between the USA and your home country. Here are all the requirements, the way the consular officer checks them.

For the E-1 treaty trader visa you need no startup capital in America and no investment plan. You need trade that already exists. If you regularly ship goods to the USA from Europe, serve American customers with your services or license technology across the Atlantic, you can use it to support your move to the USA. The rules are set out in the Department of Homeland Security regulation (8 CFR 214.2(e)) and in the consular officers' handbook, the Foreign Affairs Manual (FAM). Both texts are shorter than you might think, and in places more generous.

1The consular officer's seven checkpoints

The FAM gives the consular officer a checklist. The officer checks whether a treaty exists, whether you and your company hold the nationality of the treaty country, whether your activity is trade within the meaning of the law, whether you are coming principally to carry on substantial trade, whether that trade is principally between the USA and your country, whether, as an employee, you hold an executive role or have essential skills, and whether you intend to leave the USA when your status ends. The table below sums up the seven points.

Two statements from the FAM belong at the start of every review. First: the burden of proof is on the applicant, and the officer may ask for any document that clears up doubts. Second: many of these standards give the officer a lot of discretion, and the manual reminds officers that the treaties were concluded to make trade between the countries easier. Good documents put that discretion to work in your favor.

2Nationality: yours and your company's

The E-1 is only available to nationals of a country that has a trade treaty with the USA. Norway, Sweden, Denmark, Finland, the UK, Ireland and the Netherlands are all on the State Department's list, and Switzerland holds one of the oldest treaties, in force since 1855. Under the regulation, your own country decides whether you are its national. So your passport is the starting point.

2.1The 50 percent ownership rule

If the trader is a company rather than you personally, what counts is the nationality of its owners. Where the company was formed makes no difference: a Texas corporation can be a European company for E-1 purposes. At least 50 percent must be owned by nationals of the treaty country. With chains of companies, the officer checks every level until reaching the people who ultimately own it all. For a company whose shares trade exclusively on a stock exchange in its country of incorporation, the officer may presume it has that country's nationality.

2.2Dual nationals and green card holders

For the E-1, a company can only have one nationality. If you hold two passports from treaty countries, say a Swedish and an Italian one, you must pick one for the company, and all E-1 employees must share that same nationality. The one exception: if the company is owned half and half by nationals of two treaty countries, employees of either nationality can get the E-1. Shares held by green card holders don't count in the calculation. A trader with a green card cannot bring in employees on the E-1.

3What counts as trade

Trade under the E-1 has three features. There must be a real exchange, it must be international, and it must involve items of trade the regulation recognizes. The list is long and expressly not exhaustive: goods, services, international banking, insurance, money, transportation, communications, data processing, advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities.

The exchange must be traceable and documented, and ownership of the traded item must pass from one party to the other. An invoice from Rotterdam to Houston meets that test. A fee for work done in the USA that simply lands in an account in Europe, without supporting any business there, does not automatically meet it under the FAM. For services there is one more rule: the service must be what your company sells to its customers, not just a side effect.

The regulation is just as clear about what doesn't count: domestic trade and building a domestic market without international exchange are not trade for E-1 purposes. If all you do in the USA is sell American goods to Americans, you are not a treaty trader, wherever you come from. How goods, services and technology differ in detail is covered in What counts as trade: goods, services, technology. If you sell to the USA through a marketplace, you'll find the practical side in Amazon USA: selling from Europe.

4The trade must already be happening

The E-1 is not a visa for finding customers in America. The FAM says it in so many words: no one can get the E-1 to go looking for a trade relationship. Trade between your country and the USA must already be taking place for you or your company.

There is a bridge: successfully negotiated, binding contracts that call for the immediate exchange of items of trade also count as existing trade. So a signed supply contract with firm call-offs can count, a letter of intent cannot. If you are still building your US business, start with business trips and deliver before you apply. What you may do on those trips is explained in ESTA and B-1 visa.

5Substantial: many transactions over time

Under the regulation, substantial trade is trade that ensures a continuous flow of items of trade between the USA and the treaty country. That flow is made up of many transactions over time. Three rules follow from this, and they surprise a lot of people.

A single deal is never enough. The regulation states expressly that the status cannot rest on one transaction, however long it runs and however much it is worth. Deliver one machine for two million dollars and you have a great order, but not yet E-1 trade.

There is no minimum amount. The regulation names no figure, either for a single transaction or for total volume. The FAM tells officers to look mainly at the number of transactions and to weigh their monetary value as well. More transactions of higher value carry the most weight.

Small traders are not excluded. Many small transactions can add up to the required flow. For smaller companies, it is a favorable factor if the income from the trade is enough to support you and your family. That isn't a minimum income, but it is a good test: if your family lives off trade with America, that counts in your favor.

The word "solely" in the statute is also more generous than it sounds. The FAM reads it as "principally" or "predominantly": trade must be the main reason for your stay. A secondary purpose does no harm.

6The 50 percent rule, worked through

Trade is principally between the USA and your country when more than 50 percent of the volume of your international trade runs along that route. Exactly 50 percent is not enough. The rest can be trade with other countries or domestic business.

What matters is what goes into the calculation. Only international trade is counted. Sales within the USA stay out of it and don't dilute your share. The table below shows two US subsidiaries of German companies with made-up figures. Subsidiary A sources 70.6 percent of its international volume in Germany and meets the rule, even though its US sales are much larger. Subsidiary B buys more in Asia than in Germany and fails the rule, even though it also has German owners.

6.1Whose trade counts

What counts is the trade of the legal person acting as the treaty trader. That can be an individual, a partnership, a joint venture or a corporation. And here lies a difference that shapes your structure: a branch is not a separate person. For a branch, the trade of the entire company it belongs to counts, usually the parent company in Europe. A subsidiary, on the other hand, is its own person and is measured on its own. A US subsidiary that trades mainly with your home country meets the rule even if its European parent trades mostly with other countries. With a branch, that would not work.

If the company meets the rule, the work of each individual employee does not have to be split up as well. So an E-1 employee may also handle business with Canada or within the US. The regulation speaks of the volume of trade. That is why you should calculate the share not only in dollars but also by the number of transactions, because that is what the officer looks at first when assessing substantial trade.

7Your role: trader, executive or essential employee

The E-1 recognizes two kinds of applicants. The trader carries on the trade on their own account. The employee comes to the US for a company that meets the requirements. Three additional conditions apply to employees: they hold the same nationality as the company, and they either take on an executive or supervisory role or bring special skills that are essential to the business. Knowledge of a foreign language and culture alone is not enough. How the officer assesses executive roles and special skills is explained in E-1 for employees.

Under the FAM, an employee with essential skills does not need to have worked for the company before. That sets the E-1 apart from the L-1, which requires one year of employment with the company abroad.

8What you don't need: an investment, an office, a home in Europe

There are three things the E-1 does not require, and people often assume all three.

No investment. None of the seven criteria is an investment. Capital in the US is only required for the E-2. If your focus is trade, you don't need to tie up money there.

No office of your own. The FAM makes clear that a physical office is not a requirement for an E visa. It can play a role in the assessment, for example as evidence that the business is real, but it is not a condition.

No residence in Europe. You don't have to keep a residence abroad or state a fixed length of stay. You can sell your house and move your entire household to the US. What you do need is the intention to leave the US when your E-1 status ends. Under the FAM, a clear statement from you is usually enough. It gets stricter if an immigrant petition is already pending for you: then you have to convince the officer that you will depart at the end of your stay. More on this in From E-1 to green card.

9How you prove the requirements

The FAM contains a list of documents applicants can submit, expressly as guidance and not as a mandatory checklist. For trade, these are mainly the papers that every export generates anyway: purchase orders, customs declarations, bills of lading, contracts, letters of credit and lists of accounts receivable and payable. If you keep your books so that every transaction with the US can be matched to a document, you have already done most of the work. The FAM expressly asks applicants to organize their documents with tabs and to highlight the key figures in their financial statements.

To apply at the consulate, the trader and every E-1 employee complete the online application DS-160 plus Form DS-156-E. If you are already in the US in another valid status, you can instead apply to USCIS for a change to E-1 on Form I-129. How the application works step by step is described in Applying for the E-1, and the fees are listed in E-1 costs.

And once the visa is issued, the same requirements continue to apply: for every extension and every renewal, the trade must be substantial and more than half of it must be with your country. How that works is explained in E-1 validity, extension and family.

10E-1, E-2 or L-1: which route suits you

The E-1 is not the only route for European entrepreneurs, and not always the best one. Three questions help you sort it out.

Do you have a company at home that can send you over? Then look at the L-1. It doesn't depend on the share of trade with the US but on your employment with the company abroad, and it lets you openly pursue a green card at the same time.

Are you investing in a US company that you run yourself? Then the E-2 is the right fit, where the investment counts rather than the trade. You'll find a direct comparison of the two treaty visas under E-1 or E-2.

Are you already trading substantially with America? Then the E-1 is the route that rewards exactly that, with unlimited extensions as long as the trade keeps flowing. A company that sells more and more within the US over the years should recalculate the 50 percent rule every year.

If you set up a US company for the E-1, a corporation is the natural form for the subsidiary of a European company. How to structure your market entry as a whole is described in US market entry.

In short

• The E-1 requires the nationality of a treaty country; most European countries, including Norway, Denmark, Finland, the UK, Ireland and the Netherlands, qualify. For a company, at least 50 percent must be owned by nationals of that country.
• Trade means a traceable, international exchange of goods, services or technology for payment that is already under way.
• Trade is substantial when it flows as a continuous stream of many transactions. There is no minimum amount, and a single transaction is never enough.
• More than 50 percent of the international trade must be between the US and your home country. Domestic US business does not count.

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 market entrySubsidiary, staff, taxes: your start in the US market.