REQUEST PACKET FOR TREATY TRADERS (E-1)

Prepared by Michael W. Lin, Esquire

2016 ©

US immigration law allows foreign nationals of certain countries with whom the US has bilateral treaties, which were entered into to enhance or facilitate economic and commercial interaction between the US and the treaty countries, to come to the US to work for the treaty enterprise.

For E-1 applications, foreign national must establish whether the:

  1. Requisite treaty exists between his/her country of citizenship and the US;
  2. Individual and/or business possesses the nationality of the treaty country;
  3. Activities constitute trade within the meaning of INA 101(a)(15)(E);
  4. Trade is substantial;
  5. Trade is principally between the US and the treaty country;
  6. Applicant, if an employee, is destined to an executive/supervisory positionor possesses skills essential to the firm’s operations in the US; and
  7. Applicant intends to depart the United States when the E-1 statusterminates.
  1. NATIONALITY

The treaty trader or investor must, whether an individual or business, possess thenationality of the treaty country. The nationality of the individual is determined bythe authorities of the country of which the alien claims nationality. The nationalityof a business is determined by the nationality of the individual owners of thatbusiness.

The Immigration and Nationality Act in section 101(a)(15)(E) requires theexistence of a qualifying treaty of commerce and navigation between the UnitedStates and another State in order for the E visa classification to be accorded tonationals of that State. Such qualifying treaties may include treaties of Friendship,Commerce and Navigation and Bilateral Investment Treaties. Countries whosenationals may be accorded nonimmigrant classification under INA 101(a)(15)(E)pursuant to a qualifying treaty, or pursuant to legislation enacted to extend thatsame privilege (for example, to give effect to commitments in certain Free TradeAgreements), are listed in section 9 FAM 41.51 Exhibit I.

  1. 50 PERCENT RULE

Nationals of the treaty country must own at least50 percent of the business in question. In corporate structures one looks to thenationality of the owners of the stock. If a business in turn owns anotherbusiness, then nationality of ownership must be traced to the point of reaching the50 percent rule with respect to the parent organization. In most cases, this shouldpose no real problem but, in modern business structures and layered relationships,you will have to rely heavily on the evidence presented to adjudicate whether thebusiness entity in question possesses the requisite nationality.

  1. PLACE OF INCORPORATION

The country of incorporation is irrelevant to the nationality requirement for E visapurposes. In cases where a corporation is sold exclusively on a stock exchange inthe country of incorporation, however, one can presume that the nationality of thecorporation is that of the location of the exchange. The applicant should stillprovide the best evidence available to support such a presumption. In the case ofa multinational corporation whose stock is exchanged in more than one country,then the applicant must satisfy you, by the best evidence available, that thebusiness meets the nationality requirement.

  1. DUAL NATIONALITY OF TRADER OR INVESTOR

Except in the case in which an enterprise is owned and controlled equally (50/50)by nationals of two treaty countries, a business for which E visa status is soughtmay have only one qualifying nationality. In the case of dual national owner(s), achoice must be made by the owner(s) as to which nationality shall be used. Theowner and all E visa employees of the company must possess the nationality ofthe single E visa qualifying country, and hold themselves as nationals of thatcountry for all E visa purposes involving that company, regardless of whether theyalso possess the nationality of another E visa country. When a company is equallyowned and controlled by nationals of two different treaty countries, employees ofeither nationality may obtain E visas to work for that company.

  1. TRADE FOR E-1 PURPOSES

Trade for E-1 purposes consists of three ingredients, each of which must bepresent in all E-1 cases. The three requirements are:

  • Trade must constitute an exchange;
  • Trade must be international in scope; and
  • Trade must involve qualifying activities.
  1. Trade Entails Exchange

There must be an actual exchange, in a meaningful sense, of qualifyingcommodities such as goods, moneys, or services to create transactions consideredtrade within the meaning of INA 101(a)(15)(E)(i). An exchange of a good orservice for consideration must flow between the two treaty countries and must betraceable or identifiable. However, the fact that proceeds from services performedin the United States may be placed in a bank account in a treaty country does notnecessarily indicate that meaningful exchange has occurred if the proceeds do notsupport any business activity in the treaty country. Title to the trade item mustpass from one treaty party to the other.

  1. Trade Must be International

The purpose of these treaties is to develop international commercial trade betweenthe two countries. Development of the domestic market without internationalexchange does not constitute trade in the E-1 visa context. Thus, engaging inpurely domestic trade is not contemplated under this classification. The traceableexchange in goods or services must be between the United States and the othertreaty country.

  1. Trade Must be in Existence

An alien cannot qualify for E-1 status for the purpose of searching for a tradingrelationship. Trade between the treaty country and the United States mustalready be in progress on behalf of the individual or firm to entitle one to treatytrader classification. Existing trade includes successfully integrated contractsbinding upon the parties that call for the immediate exchange of qualifying itemsof trade.

  1. Activities Considered to ConstituteTrade

As noted above, trade for E-1 purposes involves the commercial exchange ofgoods or services in the international market place. In the rapidly changingbusiness climate with an increasing trend toward service industries, many moreservices, whether listed below or not, might benefit from E-1 visa classification.

To constitute trade in a service for E-1 purposes, the provision of that serviceby an enterprise must be the purpose of that business and, most importantly,must itself be the saleable commodity which the enterprise sells to clients. Theterm “trade” as used in this statute has been interpreted to includeinternational banking, insurance, transportation, tourism, communications, andnewsgathering activities. (Aliens engaged in newsgathering activities, however,should usually be classified under INA 101(a)(15)(I).) These activities do notconstitute an all inclusive list but are merely examples of the types of servicesfound to fall within the E-1 meaning of trade. Essentially, any service itemcommonly traded in international commerce would qualify.

  1. SUBSTANTIAL TRADE
  1. The word “substantial” is intended to describe the flow of the goods or servicesthat are being exchanged between the treaty countries. The trade must be acontinuous flow that should involve numerous transactions over time. Youshould focus primarily on the volume of trade conducted but you should alsoconsider the monetary value of the transactions as well. Although the numberof transactions and the value of each transaction will vary, greater weightshould be accorded to cases involving more numerous transactions of largervalue.
  1. The smaller businessman should not be excluded if demonstrating a pattern oftransactions of value. Thus, proof of numerous transactions, although eachmay be relatively small in value, might establish the requisite continuing courseof international trade. Income derived from the international trade which issufficient to support the treaty trader and family should be considered favorablywhen assessing the substantiality of trade in a particular case.
  1. TRADE MUST BE PRINCIPALLYBETWEEN UNITED STATES AND COUNTRY OFALIEN’S NATIONALITY

The general rule requires that over 50 percent of the total volume of theinternational trade conducted by the treaty trader regardless of location must bebetween the United States and the treaty country of the alien’s nationality. Theremainder of the trade in which the alien is engaged may be international tradewith other countries or domestic trade. The application of this rule requires a clearunderstanding of the distinctions in business entities described below.

  1. Measurement of Trade

To measure the requisite trade one must look to the trade conducted by the legal“person” who is the treaty trader. Such trader might be an individual, apartnership, a joint venture, a corporation (whether a parent or subsidiarycorporation), etc. It is important to note that a branch is not considered to be a separate legal person or trader but part and parcel of another entity. In contrast,a subsidiary is a separate legal person/entity. Thus, to measure trade in the caseof a branch, you should look to the trade conducted by the entity of which it is apart, usually a foreign-based business (individual, corporation, etc.).

  1. Effect on Employee’sResponsibilities in United States

If the trader, whether foreign-based or U.S.-based, meets this percentilerequirement, the duties of an employee need not be similarly apportioned toqualify for an E-1 visa. For an example, if a U.S. subsidiary of a foreign firm isengaged principally in trade between the United States and the treaty country, it isnot material that the E-1 employee is also engaged in third-country or intra-U.S.trade or that the parent firm’s headquarters abroad is engaged primarily in tradewith other countries.

  1. PROCEDURES IN APPLYING FOR E-1 VISA

Aliens applying for E visas must file the application directly with the US Embassy at his/her country of nationality. Each US consulate handles E visas differently so the information that we will provide herein is general information only. You must check with the US Embassy website for country specific instructions for E visa filing. Because of the complexity of the regulations regarding E visas, please consult with us before taking any action.

The steps for E visa process are as follows:

  1. Prepare the checklist of the documents for E visa;
  2. If you are currently in the US and would like to change your status to E-1, skip to step 9
  3. Prepare 156E form
  4. Complete DS160 online
  5. Pay MVR fee and DS160 visa fee
  6. Submit E visa application to US Consulate for review
  7. US Consulate will schedule an appointment for you to be interviewed
  8. Upon approval, US Consulate will issue you an E visa with the validity that is subject to the reciprocity agreement between the US and your country of nationality (e.g. some E visas are issued for 5 years and some are issued for 6 months only, depending on your country of nationality). Regardless the duration of the visa validity, once you enter the US with a valid E visa, the CBP should admit you for an authorized period of stay of two years. Make sure you double check your I-94 each time when you enter the US to determine the period of authorized stay as given. Before your stay is expired, you may file for an extension of stay with the DHS or depart the US and re-enter with your E visa, provided that it remains valid. Please consult with us before taking any action. If you would like to file for an extension of status, proceed to step 9.
  9. From step #2 or #8, whichever is applicable, prepare I-129 E visa petition to be filed with the USCIS
  10. Upon approval by the USCIS, you will be given a new I-94 that shows your E visa status and new authorized period of stay.
  11. If you need to travel abroad after the granting of extension of your E visa status, you may need to apply for a new E visa if your current E visa has already expired or you have never received an E visa before.

This packet is designed to secure necessary information to satisfy the requirements of the Code of Federal Regulations governing the E-1 non-immigrant visa status. Therefore, precise following of the enclosed instructions is essential for a timely, accurate and delay-free filing. This information also serves to provide us with the needed information to complete the required filing. This information, then, becomes the basis of all the documentation filed with the various federal agencies. Therefore it is essential that the information be as accurate as possible.

The entire packet as well as all supporting documentation (see checklist following each section) should be returned to: Michael W. Lin, Esquire, MICHAEL W. LIN, PC, 4001 N. 9th Street, Suite 222, Arlington, VA 22203, (TEL) 703 243 1474, (FAX) 703 243 1494, .

PLEASE BE ADVISED THAT RETURNING E-1 PACKET TO US DOES NOT ESTABLISH ATTORNEY-CLIENT RELATIONSHIP WITH US. YOUR COMPANY WILL NEED TO RETAIN OUR LAW FIRM IN WRITING WITH A MUTUALLY EXECUTED RETAINER AGREEMENT. NO VISA PETITION/APPLICATION WILL BE FILED UNTIL YOUR COMPANY HAS RETAINED US TO REPRESENT YOUR COMPANY. WE WILL THEN PREPARE THE E-1 VISA PETITION/APPLICATION FOR YOUR REVIEW BEFORE FILING.

MICHAEL W. LIN, PC

E-1 CHECKLIST

  • Completed Part A – Treaty Enterprise Section
  • Completed Part B – Treaty Trader Section

INFORMATION ABOUT TREATY ENTERPRISE

  • If the Treaty Enterprise is structured as a corporation, provide all stock certificates, stock ledger, proof of stock purchase (such as copies of the original wire transfers from the parent company, cancelled checks, deposit receipts, and bank statement), meeting minutes, Articles of Incorporation, or other documentation that establishes ownership and control. If no money was exchanged in a stock transfer, provide documentary evidence as appropriate.
  • If the Treaty Enterprise is a limited liability company, provide a copy of the Article of Organization, the Operating Agreement (OA), meeting minutes, or other documentation that establishes ownership and control.
  • If the Treaty Enterprise is a partnership, provide a copy of the company’s partnership agreement, or other documentation that establishes ownership and control.
  • If the Treaty Enterprise is a sole proprietorship, provide any appropriate documentary evidence that establishes ownership and control.
  • If the Treaty Enterprise is a franchise, provide a complete copy of the company’s franchise agreement, including all addenda, attachments, additional statements, and exhibits, or other documentation that establishes ownership and control.
  • Copies of the passports for all owners
  • Your proposed position title with the Treaty Enterprise
  • All specific daily duties (rather than categories of duties)
  • An organizational chart showing the names of and the total number of subordinate managers/supervisors or other employees who will report directly to the Treaty Trader. Include a brief description of their job titles, duties and education level, and whether they work full or part-time. If the Treaty Enterprise has used contract labor, please submit evidence to document the number of contractors used by the Treaty Enterprise, and indicate the duties performed by the contractors.
  • Business license
  • Business plan to explain how you intend to expand your business with 1, 3 and 5 year project.
  • Lease agreement
  • Bank statements for 3 months
  • Agreements for international trade, showing the dollar amount of the products being traded.
  • Bills of lading, invoices, customs clearances, warehouse receipts, shipping receipts, sales receipts, etc.
  • Evidence of remittance to the US (bank drafts, transfers, exchange permits, receipts, etc.)
  • W-3s and W-2s for all employees for the most recent year, if applicable
  • Most recent payroll record, if applicable
  • Company brochure, if applicable
  • Tax returns for the most recent 3 years, if applicable
  • Base filing fee of $325.00 payable to “US Department of Homeland Security”, if filing for I-129 E-1 extension or change of status visa petition in the US.
  • Filing fee of $290.00 payable to “US Department of Homeland Security” if the Treaty Trader has family member(s) who will be filing for an extension or change of status application along with the E-1 filing.
  • Premium Processing Fee of $1,225.00 payable to “US Department of Homeland Security” (optional)

(all docs not in English must be translated and certified by the translator with the following statement: I, ______, hereby certify that I am competent in both English and ______to render this translation and that the information is accurate and correct to the best of my knowledge. Signature and date)

PART A
To Be Completed by the Treaty Enterprise
Name of US Enterprise, Business or Company:
Type of Business Enterprise:
Corporation Branch/Liaison Office Partnership
Privately Owned Joint Venture Subsidiary Other:
Address of Headquarters, Subsidiaries and Branch Offices of US Enterprise (specify type of office):
Telephone Number: Fax Number: Email:
Federal Treaty Enterprise Identification Number (FEIN): #
Date (mm-dd-yyyy) and Place Business Was Established or Incorporated in the United States:
What is the nature of the business?
General Trade Exports from US Retail Sales Other (Describe):
Imports to US Manufacturing Services/Technology
Describe fully the services, production, or other activity as identified above.
Name and Address of Foreign Parent Business (if any)
Nationality of Foreign Entity (Corporation, Partnership, etc.) or Foreign Individual Owner of US Business
Please list the name, nationality, immigration status and percentage of ownership for all owners
Nationality of Foreign Entity (Corporation, Partnership, etc.) or Foreign Individual Owner of US Business
Please list the name, nationality, immigration status and percentage of ownership for all owners
Name / Nationality / If individual investor, Immigration status / Percent of ownership
Total – 100%
Financial Statement for year Calendar Year Fiscal Year
Total Assets of US Business: Current Cash Historical Cost
Total Liabilities:
Owner’s Equity: (Owner’s equity refers to paid-in capital plus retained earnings; partner’s capital accounts in a partnership; and owner’s capital account in a sole proprietorship)
Total Annual Operating Income: (before taxes) (after taxes)
To measure the amount of international trade with the United States, please complete the following:
Gross International Trade of the US Enterprise in (year) Calendar Year Fiscal YearEnding:
Dollar Value / No. of Transactions (optional) / Percent of Total Trade
Imports from treaty country to U.S. business
Exports from U.S. business to treaty country
Imports from third countries to U.S. business
Exports from U.S. to third countries
Domestic U.S. production/manufacturing
Total / 100%

STAFF

Type of Personnel in the United States (attach staffing chart)
Specify: Calendar Year Fiscal Year
Managerial Executive / Specialized Essential / All Other Employees
This Year / Next Year / This Year / Next Year / This Year / Next Year
Nationals of Treaty Country on E, H, & L Visas:
U.S. Citizens and Legal Permanent Residents:
Other (Third-Country Nationals):
TOTAL:

List all personnel of U.S. business holding executive, managerial and/or specialist positions by subsidiary/branch office. If aliens, indicate nonimmigrant visa status or lawful permanent resident (LPR) status.
U.S. Visa
Name and Position/Title/Division / Nationality / Type / Date (mm/dd/yyyy) / Place of Issuance
Hiring Official’s Name and Title:
Company Phone: Company Fax: Email:
Mobile Phone:
Number of Full Time Employees:
Number of Part Time Employees:
TYPE OF E-1 POSITION OFFERED TREATY TRADER EMPLOYEE
Principal owner/investor/trader Supervisor Specialist
Manager Executive Other ______
Position in the United States
Title:
Description of duties (include names and titles of all immediate subordinates)
Annual U.S. Salary and Benefit Package
Salary:
Allowances/Benefits:
TOTAL:
Name of Person in the United States Being Replaced: If NOT a replacement, is this:
Type of Visa: a. An increase in staff? Yes No
Date Issued (mm/dd/yyy): b. Continuation of existing employment
in the United States Yes No
Place Issued:
PERIOD OF THE INTENDED EMPLOYMENT: Start Date: End Date:
Maximum period of stay is 2 years for each admission.
DO YOU WANT US TO SEND THE E-1 APPLICATION PACKET FOR YOUR REVIEW & SIGNATURE VIA FEDEX (HARD COPY) OR E-MAIL?
Email:
Fedex: ATTN:
ADDRESS:
(if different from the company’s address)
ADDITIONAL INFORMATION, COMMENTS OR QUESTIONS FROM TREATY ENTERPRISE

I attest to the above information as provided in this packet is true and accurate to the best of my knowledge.