Ask Sophie™: Do I qualify for an E-1 trader visa?

Dear Sophie,

Do I qualify for an E-1 trader visa? I’m from New Zealand and have a B2B SaaS company with a lot of clients in the U.S. We have a Delaware C corp that has raised money, and I’m working at the subsidiary in Auckland where all of our employees are based. We don’t currently have a U.S. office, but we pay our taxes there.

— Keen Kiwi

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Dear Keen,

Thanks for reaching out to me with your question about whether you qualify for the E-1 treaty trade visa and for sharing your exciting news about expanding your operation in the U.S. Great to hear you have already established your parent company in the U.S. to facilitate your U.S. fundraise.

New Zealanders became eligible for the E-1 treaty trader visa and the E-2 treaty investor visa in 2019 when the United States established a treaty of commerce and navigation with New Zealand. The E-1 treaty trader and E-2 treaty investor visas were established to facilitate and strengthen economic ties between the United States and several other countries (notably, there is no such treaty currently with India, China or Brazil!). I discussed these two types of E visas and more in my podcast episode Special Visas for Talent from Specific Countries.

The quick answer to your question is yes, you may likely qualify for an E-1 trader visa, but that will depend on the nationality of your company’s ownership and several other factors, so it’s worth looking into further. Depending on your plans for market expansion or building up your team and operations in the U.S., you may also qualify for an E-2 visa (or even several other types of visas such as the O-1 or L-1, which are not country-specific). Let me dive into the requirements, benefits, and drawbacks of each, as well as dive more into the L-1A as an alternative.

E-1 Treaty Trader Visa

The E-1 visa is for a citizen of a treaty country who carries out or helps their company carry out “substantial trade” in goods, transportation, or services, including technology, banking, and insurance, between the U.S. and the treaty country. Immigration law doesn’t specifically spell out what is meant by “substantial trade,” so there’s no minimum requirement regarding the dollar value or number of transactions. However, sizable and frequent international transactions are more likely to be approved.

In addition to “substantial trade,” you and your company must meet these requirements for the E-1 visa:

• You must be a citizen of a treaty country.
• At least half of the ownership of your U.S. company must be held by people or companies of the same treaty country as you, which is worth further examination if you raised money from U.S. investors.
• You must be personally conducting trade or be an essential employee of your company in a supervisory or executive position.
• Generally, at least 50% of your company’s trade volume must be between the United States and the trader’s country.

For both the E-1 and E-2 applications, you will need to submit a detailed business plan with income and cost projections, your company’s organizational structure, market analysis, and a job creation plan, among other things. In addition, you can bring your spouse and children with an E-1 or E-2 visa, and your spouse can work while in the U.S.

E-2 Treaty Investor Visa

The E-2 visa is for individuals who have invested or are in the process of investing a “substantial” amount of capital to set up or expand and direct business operations in the U.S. or are considered essential employees of such a business. Although immigration law does not spell out how much is considered a “substantial investment,” we’re usually talking about tens if not hundreds of thousands of U.S. dollars already invested in business expenses such as office space, equipment, and even intellectual property as a solid target. The total depends on how much capital is required to spin up operations in the United States, but usually, an investment of millions of dollars is not required for a software startup to qualify for an E-2. In addition, you and your company must meet the following requirements to qualify for an E-2:

• You must be a citizen of a treaty country.
• At least half of the owners of your company must also be citizens of the same treaty country, which may have changed if you raised money from investors.
• You must personally develop and direct the business or be an essential employee in a supervisory, executive, or highly specialized and skilled position.
• The U.S. business should generate more than enough income to provide a living for you and your family—or at least be able to do so within five years from when you receive the E-2 visa.

Having U.S. employees or a business plan that includes creating jobs for workers here also helps.

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Benefits and drawbacks of the E-1 and E-2

The biggest drawback of both the E-1 and E-2 is that if your company’s ownership dilutes with U.S. investors, you might no longer qualify.

Both visas are usually granted for 5 years and multiple entries. Usually when you enter the U.S. you will be admitted for stays in increments of two years. If you apply for an extension of status within the U.S with USCIS, you can seek two-year increments as long as you can demonstrate your company is meeting its projections.

If you want to obtain a green card that will allow you to remain permanently in the U.S. and apply for one while in the U.S., you risk being unable to re-enter the U.S. on your E-1 or E-2 visa if you travel abroad. Despite this, many E-1 and E-2 visa holders have successfully found ways to navigate the green card process to stay in the U.S. permanently. A notable exception is that the U.K. E visa treaty specifically requires you to demonstrate that you reside actually and permanently in the U.K. and have a domicile there. Talk to your immigration lawyer if you might want a green card one day.

L-1A Visa

An option for startups that are not majority owned by citizens of treaty countries is the L-1A visa for intracompany transferee executives. This a great option for startups like yours whose ownership may already be diluted by bringing on investors to your U.S. parent company.

To qualify for an L-1A, you must demonstrate that you have:

• Been working for your company abroad for at least one year in the past three years.
• An executive or managerial position in the U.S. with broad discretion to make decisions with little oversight.
• For a new U.S. company, demonstrate that you have secured an office in the U.S. and that the U.S. office will support your position within one year of approval. 

Like the E-1 and the E-2, the L-1A visa application requires you to submit a detailed business plan including growth models and organization charts. If you’re setting up a new office in the U.S. and are approved for an L-1A, that visa will be valid initially for one year only. After that, to extend the L-1A, you will need to show your U.S. business has met your growth models and is viable. L-1As for managers and executives are usually valid for a maximum of 7 years.

L-1 visas are specifically dual intent, which means it’s a nonimmigrant visa, but you can intend to seek permanent residence in the U.S. from the outset by getting a green card. It’s very easy to apply for a green card in parallel to the L-1A because that visa offers a direct path to a green card—the EB-1C green card for a multinational manager or executive, and you can apply for other green card categories as well.

Take a look at this previous Ask Sophie™ column in which I discuss the pros and cons of the E-2 and L-1A visas.

Wishing you all the best on whatever path you decide to take!

—Sophie

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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

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