The “E” category was established to give effect to treaties between the United States and foreign countries that provide for reciprocal benefits to nationals of each country who invest in the other country, or who conduct trade between the two countries. To be eligible to apply for an E-1 visa, an applicant must be a citizen of such a country, and must be carrying on “substantial” trade “principally” between the United States and the treaty country.
Trade is defined in the E-1 regulations as “the existing international exchange of items of trade for consideration between the United States and the treaty country.” Title to the items of trade must pass from one country to the other in a commercial, traceable, and identifiable manner. Under the E-1 visa regulations, there is no minimum in terms of number or dollar amount of transactions required to meet the definition of “substantial.” However, to be considered substantial, the trading enterprise must be of a sufficient size to ensure a continuous flow of numerous items of trade over time from one country to another. E-1 guidance states that income from trading activities that is sufficient to support the trader and his or her family will be considered favorably in meeting this requirement. Furthermore, the number of transactions is more significant than the total dollar amount of these transactions, although a large number of high-dollar value transactions obviously will be looked upon positively by the embassy.
It is important to note that “substantial” trade must be “existing” at the time one applies for E-1 status. Intent to engage in trade, even if documented, will not in itself qualify an individual for E-1 status. However, successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade may meet this requirement.
To show that the activity the treaty trading enterprise is “principally” between the U.S. and the treaty country, one must demonstrate that more than 50% of the total volume of trade in which the U.S. enterprise participates take place between these two countries
The E-1 applicant’s spouse and unmarried children under 21 also are entitled to E-1 status. E-1 spouses may apply for work authorization once they enter the U.S.