The E-1 visa can be a great option for a national of a treaty country to live in the US to develop international trade between the U.S. and the treaty country. Unlike the E-2 visa, the E-1 visa generally does not require that there exist a legal business entity in the United States (such as a corporation or limited liability company (LLC)).
While it is generally true that E-1 visa applications submitted to U.S. consulates are not required to show the existence of a U.S. entity, U.S. Citizenship and Immigration Services (USCIS) tends to take a stricter approach and prefers to see the existence of a U.S. entity. In this blog post, we discuss this is more detail, and the practical impact it might have for your application.
- The E-1 visa often does not require a U.S. entity for consular applications; active trade from a treaty-country business can be sufficient.
- USCIS takes a stricter approach and generally expects a U.S. business presence, presupposing a U.S. employer, office, or branch on Form I-129.
- For USCIS E-1 change of status, having at least a U.S. branch, preferably a U.S. LLC or corporation, is strongly recommended to support and strengthen the application.
Pursuing an E-1 Visa: Consulate vs. USCIS
As a reminder, the two main options to apply for E-1 status are through a consulate and through USCIS. A consulate tends to be the preferred option since consulates can issue an E-1 visa that allows for multiple entries into the United States in E-1 status. USCIS, on the other hand, can only grant E-1 status. That status is abandoned the moment the recipient leaves the United States. Once they leave, they must apply for an E-1 visa at a consulate if they would like to re-enter the U.S. in E-1 status.
In spite of the many benefits of applying at a consulate, for someone who is already inside the U.S. and seeking E-1 status on the fastest timeline possible, applying for a change to E-1 status through USCIS might be the ideal option.
Additionally we have also covered the difference between these two options, as well as the pros and cons of applying through a consulate or USCIS.
Consular E-1 Visa Applications: No U.S. Entity Required
Consulates generally do not require that E-1 visa applicants show that there is a legal business entity in the U.S. Instead, it is generally acceptable if the the business or individual applying for the visa is based in a treaty country and is actively engaged in trade with the United States. This means a person can typically apply for and obtain an E-1 visa at a consulate without forming a corporation, LLC, or any other legal entity in the U.S., so long as they otherwise meet the E-1 visa requirements.
This being said, there are reasons why having a U.S. entity can be beneficial and strengthen the E-1 application. Among other things, having a U.S. entity can make it easier to manage payroll and hire employees, open bank accounts and sign contracts, and build credibility with U.S. clients.
USCIS E-1 Applications: U.S. Entity Generally Required
USCIS, in contrast to most consulates, does prefer and may even require that an E-1 application show the existence of a U.S. business entity. This is suggested in the language of the Form I-129, which is the form required to apply for a change to E-1 status. The I-129 expects that there be some U.S. office or petitioner. The form’s instructions say that a “U.S. employer” may file the form. The form also asks for the U.S. office address of the company.
As a result, USCIS seems to presuppose that the entity conducting trade between the treaty country and the United States has a legal presence in the U.S. Does this necessarily mean that the applicant must establish a separate business entity in the U.S. such as a corporation or a limited liability company? Not necessarily. It might be sufficient to show that the foreign company has established a U.S. branch or other legitimate, tangible operating presence in the U.S.
Navigating E-1 Visa Entity Requirements
While consulates generally will not require evidence of the existence of a U.S. entity where a foreign entity engaging in trade with the U.S. is clearly established, this is a riskier proposition when the E-1 application is being submitted to USCIS.
In E-1 applications submitted to USCIS, it is recommended that, at a minimum, the applicant be able to point to the existence of a branch office in the United States – even if the primary company is based abroad. Ideally, the applicant will establish a U.S. entity such as a limited liability company or corporation on which the E-1 application can be based.
Ultimately, this not only addresses the USCIS requirements, but might also strengthen other aspects of the E-1 application by, for example, making it easier for the applicant to form relationships with commercial banks, sign contracts, build credibility with U.S. clients, and hire and employ workers.
