Does the trade have to be in existence at the time I apply for an E-1 visa? Is it sufficient if I submit binding contracts with clients?

By May 20, 2020October 21st, 2020E-1 Visa, Immigration
Image courtesy of Nguyen Hung Vu on Flickr (labeled for reuse) https://www.flickr.com/photos/vuhung/14565350736

E-1 visa is a great visa for treaty traders who engage in international trade between the U.S. and their home treaty country.

Immigration regulations state that you cannot come to the U.S. to “search for a trading relationship”. If you want to apply for an E-1 visa but the trade is not yet existing, you may want to come to the U.S. on a B-1 visa first, find clients, set up a business entity, and then apply for an E-1 visa. Please see our blog post on this when you click here. Please note that it is not required for an E-1 visa to set up a business entity in the U.S. but it may be advisable in some cases.

One of the E-1 requirements is that the trade between the U.S. and the treaty country is already in existence at the time you apply for an E-1 visa. However, the immigration regulations state that if you can submit evidence of successfully negotiated contracts that are binding upon the parties and that call for immediate exchange of items of trade, you may still meet this criterion. Additionally, you will still have to meet all the other E-1 requirements, such as that the trade is substantial and more than 50% of the international trade is with the treaty country.

Example 1

You have a company in the U.K. and you want to start importing fabrics to the U.S. You successfully negotiated contracts with 20 U.S. clients and the contracts indicate that starting next month you will be sending around 50-100 deliveries per month (each delivery will have a value of couple thousands USD). In addition, the revenues are projected to be couple million dollars in each year in the next 3 years. We generally advise our clients that the trade between the U.S. and the treaty country has already been going on for couple months at the time the E-1 application is submitted, but based on the language from the regulations, you may still apply for the E-1 visa in this scenario.

Example 2

You have a company in Canada and you want to start providing management consulting services to U.S. clients and get an E-1 visa. In the past year, you had 2 U.S. clients and you provided them services worth $30,000 USD. You now signed binding contracts with 2 additional U.S. clients and the contracts indicate that in the next 3 years, you will provide each client services worth $20,000. In this case, it may be advisable to wait a little bit, get more U.S. clients, and apply at a later time as you would most likely not meet the substantiality requirement.

In cases where you cannot submit evidence of the trade from the past years, we would recommend that you submit a business plan with your E-1 application in which you will explain the financial projections and prove how you meet the E-1 requirements.

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