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Monday, February 18, 2019

Comparing Two Non-Immigrant Status Types: E-1 and O-1

By Nisha V. Fontaine 

Often when clients approach us, they have an idea of what type of non-immigrant (temporary) status they are seeking. They’ve spoken to friends/colleagues who have shared their experiences, researched online or even met with other U.S. immigration attorneys. Having decided on their strategy, they ask us about fees, processing times and retaining our services.

However, during our first consultation with these individuals, we ask them to take a step back – it could be very well that their researched approach may be the right one for them – but we want to make sure that we’ve thoroughly explored their options before deciding and investing in a U.S. strategy – make sure that they have considered all the angles/options. We ask questions about their long-term plans for the U.S., their families and their accompanying needs, etc.

For example, an individual who wants to ensure that their spouse can obtain employment authorization in the U.S. will want to ideally pursue a non-immigrant status that allows for derivative spouses to receive an Employment Authorization Document (EAD) – such as E-1’s, E-2’s and L-1’s. Other categories, such as TN’s and O-1’s, do not allow for spouses to receive an EAD.

Two categories that we often end up comparing are E-1 (treaty trader) and O-1 (a temporary non-immigrant status reserved for individuals of extraordinary ability in their field).

To help them decide which category best suited their goals and business model, we provided them with a comparison of the two categories:

 

E-1

(through Consulate)

O-1

(through USCIS)

Type of Business Activity Required?

Substantial International Trade between Treaty Country & U.S.

Satisfy O-1 Extraordinary Ability Criteria

Spouse/Child Derivative Status Available?

Spouse and unmarried children under age 21 can obtain E-1’s, regardless of nationality

Spouse and unmarried children under age 21 can obtain O-3

Employment Authorization for Spouse Avail?

Spouse can obtain Employment Authorization Document (EAD) from USCIS

No.

Employment Authorization for Child Avail?

No.

No.

Processing Times

Depends on avail. at Consulate – 4-6 wks generally – Same day adjudication at time of visa interview

@ USCIS - 4-5 Months

(or 15 Days w/Premium Processing)

Nationality Requirements?

Yes

No

Agency Filing With?

U.S. Consulate or USCIS

USCIS

Govt. Filing Fees

$205 Visa Application Fee + Reciprocity Fee as set by U.S. Dept. of State (differs per country)

$325 Filing Fee +

$1,410 Premium Processing Fee (optional)

Maximum Validity –

Initial Application

Consulate can approve up to 5 yrs, even on an initial application;

USCIS can only approve 2 Yrs at a time

Can be approved up to 3 yrs, based on the employment offer/itinerary

Maximum Validity – Total

Can be indefinitely renewed as long as the requirements are met

Can be indefinitely renewed as long as the requirements are met

Green Card Aspirations Available?

None avail through the E-1. Can seek alternative routes (PERM, EB-2 NIW, etc.)

Can consider EB-1 Extraordinary Ability category, which has similar requirements.



Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.