What is a Treaty Trader?
1) Treaty Trader. An alien, if otherwise admissible, may be classified
as a nonimmigrant treaty trader (E-1) under the provisions of section
101(a)(15)(E)(i) of the Act if the alien:
(i) Will be in the United States solely to carry on trade of a
substantial nature, which is international in scope, either on
the alien's behalf or as an employee of a foreign person or organization
engaged in trade principally between the United States and the
treaty country of which the alien is a national, taking into consideration
any conditions in the country of which the alien is a national
which may affect the alien's ability to carry on such substantial
trade; and
(ii) Intends to depart the United States upon the expiration or
termination of treaty trader (E-1) status.
(2) Employee of treaty trader
or treaty investor. An alien employee
of a treaty trader, if otherwise admissible, may be classified
as E-1, and an alien employee of a treaty investor, if otherwise
admissible, may be classified as E-2 if the employee is in or is
coming to the United States to engage in duties of an executive
or supervisory character, or, if employed in a lesser capacity,
the employee has special qualifications that make the alien's services
essential to the efficient operation of the enterprise. The employee
must have the same nationality as the principal alien employer.
In addition, the employee must intend to depart the United States
upon the expiration or termination of E-1 or E-2 status. The principal
alien employer must be:
(i) A person in the United States having the nationality of the
treaty country and maintaining nonimmigrant treaty trader or treaty
investor status or, if not in the United States, would be classifiable
as a treaty trader or treaty investor; or
(ii) An enterprise or organization at least 50 percent owned by
persons in the United States having the nationality of the treaty
country and maintaining nonimmigrant treaty trader or treaty investor
status or who, if not in the United States, would be classifiable
as treaty traders or treaty investors.
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(3) Spouse and children of treaty trader or treaty investor. The
spouse and child of a treaty trader or treaty investor accompanying
or following to join the principal alien, if otherwise admissible,
may receive the same classification as the principal alien. The
nationality of a spouse or child of a treaty trader or treaty investor
is not material to the classification of the spouse or child under
the provisions of section 101(a)(15)(E) of the Act. (Corrected
11/6/97; 62 FR 60122)
(4) Nonimmigrant intent. An alien classified under section 101(a)(15)(E) of the Act shall maintain an intention to depart the United States
upon the expiration or termination of E-1 or E-2 status. However,
an application for initial admission, change of status, or extension
of stay in E classification may not be denied solely on the basis
of an approved request for permanent labor certification or a filed
or approved immigrant visa preference petition.
(5) Treaty country. A treaty country is, for purposes of this
section, a foreign state with which a qualifying Treaty of Friendship,
Commerce, or Navigation or its equivalent exists with the United
States. A treaty country includes a foreign state that is accorded
treaty visa privileges under section 101(a)(15)(E) of the Act by
specific legislation.
(6) Treaty country nationality. The nationality of an individual
treaty trader or treaty investor is determined by the authorities
of the foreign state of which the alien is a national. In the case
of an enterprise or organization, ownership must be traced as best
as is practicable to the individuals who are ultimately its owners.
(7) Terms and conditions of E treaty status-
(i) Limitations on employment. The Service determines the terms
and conditions of E treaty status at the time of admission or approval
of a request to change nonimmigrant status to E classification.
A treaty trader, treaty investor, or treaty employee may engage
only in employment which is consistent with the terms and conditions
of his or her status and the activity forming the basis for the
E treaty status.
(ii) Subsidiary employment. Treaty employees may perform work
for the parent treaty organization or enterprise, or any subsidiary
of the parent organization or enterprise. Performing work for subsidiaries
of a common parent enterprise or organization will not be deemed
to constitute a substantive change in the terms and conditions
of the underlying E treaty employment if, at the time the E treaty
status was determined, the applicant presented evidence establishing:
(A) The enterprise or organization, and any subsidiaries thereof,
where the work will be performed; the requisite parent-subsidiary
relationship; and that the subsidiary independently qualifies as
a treaty organization or enterprise under this paragraph;
(B) In the case of an employee of a treaty trader or treaty investor,
the work to be performed requires executive, supervisory, or essential
skills; and
(C) The work is consistent with the terms and conditions of the
activity forming the basis of the classification.
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