E2 Employees of Treaty Investors

• Introduction for E2 Visas for Employees
• Eligibility to Petition for E2 Employees
• Eligibility Requirements for E2 Employees
• Application Process for an E2 Employee Visa
• Maintaining and Extending Status as an E2 Employee
• Derivative E2 Family Members
• Advice for E2 Employees

 

Introduction for E2 Visas for Employees

The E-2 (E2) Treaty Investors visa is a nonimmigrant visa for nationals of qualified treaty countries who intend to invest money in a U.S. enterprise. The E2 visa is also available for employees of E2 treaty investors and for employees of qualifying organizations or investors abroad that do not have E2 visas but are qualified to petition for and employ E2 beneficiaries. This article will explain the requirements for eligibility to petition for and hire E2 employees, the requirements for qualifying as an E2 employee, and the rules and regulations for being on E2 status as an employee (including information about E2 family members).

To learn about the statutes, rules, and regulations regarding visas for principal E2 treaty investors, please follow this link.

Eligibility to Petition for E2 Employees

Department of State (DOS) regulations found in 22 C.F.R. 41.51(b)(2) list the requirements for supporting an E2 visa for an employee of a treaty investor:

(i) A person having the nationality of a treaty country, who is maintaining the status of treaty investor if in the United States, or, if not in the United States, who would be classifiable as a treaty investor; or
(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors.

The first requirement to understand is that an E2 employee of a treaty investor must be of the same nationality as the employer. Please consult the following table for all of the countries which qualify for E2 visas:

The regulations offer two scenarios: one scenario where the employer is in the United States and one scenario where the employer is abroad.

E2 Employer in the United States

Where the E2 employer is in the United States, the employer must have an E2 visa as a treaty investor. An employer cannot be in the United States in any classification other than E2 and be eligible to hire E2 employees. Where the U.S. based petitioner is an organization, it must be at least 50% owned by persons each of whom has the nationality of a single treaty country and are maintaining E2 treaty investor status in the United States. The organization may only have that single nationality for E2 employer purposes except where the business is controlled equally (50/50) by nationals of two treaty countries who are maintaining E2 treaty investor status in the United States, in which case nationals from either country would be eligible for classification as E2 employees.¹

E2 Employer Abroad

Where the E2 employer is abroad, it is not required that any individuals maintain E2 treaty investor visas in the United States. However, where the employer is a single person, he or she must be otherwise classifiable as an E2 treaty investor. Where the employer is an organization, it must be at least 50% owned by persons abroad who would otherwise be classifiable as treaty investors from a single treaty country. If it is controlled equally (50/50) by nationals of two treaty countries abroad who would otherwise be classifiable as E2 treaty investors, nationals of either country would be eligible for classification as E2 employees.² Please note that persons abroad who are U.S. citizens or lawful permanent residents (LPRs) may not be counted for ownership purposes even if they also have the nationality of a qualifying treaty country.³

Eligibility Requirements for E2 Employees

Provided that a prospective E2 employee is from the same country as a qualifying E2 employer, there are two capacities in which an E2 employee may work for the treaty enterprise:

Executive and Supervisory Character;
Special Qualification/Essential Employee Capacity

Furthermore, an applicant for an E2 employee visa must be admissible to the United States.

Executive and Supervisory Character

DOS regulations provide that a position with an “executive or supervisory character” requires that the executive or supervisory element of the position be the principal and primary function.⁴ Executive and supervisory duties entail ultimate control for either the enterprise's overall operation or for a major component of the enterprise.⁵ The regulation defines an “executive” position as one that provides the E2 employee with great authority to determine the policy and overall direction of the enterprise.⁶ A “supervisory” position is one that grants the E2 employee supervisory responsibility for a significant portion of the enterprise's operations and does not generally involve the direct supervision of low-level employees.⁷

In order to determine whether a proposed position is of an “executive or supervisory” capacity, Consular officials are instructed by the Foreign Affairs Manual (FAM) to consider:

The title of the position;
The position's place in the firm's organization structure;
The duties of the position;
The degree to which the applicant will have ultimate control and responsibility for the firm's overall operations or for a major component thereof;
The number and skill levels of the employees that the applicant will supervise;
The level of pay offered to the applicant;
Whether the applicant possesses qualifying executive or supervisory experience.⁸

It is important to note that these factors will not necessarily apply equally to every application. For example, the instructions provide the example that the title “vice president” or “manager” may be useful in assessing the supervisory nature of a position in a major operation with numerous employees, but the title would likely not be a significant factor if the applicant is coming to work in a two-person office.⁹

United States Citizenship and Immigration Services (USCIS) regulations are generally similar to the DOS regulations and the FAM, but add that if the position requires any routine work that would usually be performed by a staff employee, it must be only of an incidental nature.¹⁰

Because the nature of an “executive or supervisory” position is similar to the non-investment requirements for a visa as an E2 treaty investor, the E2 employee visa for a “supervisory or executive” position is often an option for foreign investors from treaty countries who cannot satisfy all of the rigorous requirements for an E2 visa as a treaty investor. An investor may, depending on the situation, be able to have his or her organization obtain classification as an E2 employer and then seek an E2 visa as an employee of the organization. An investor in this situation should consult with an experienced immigration attorney to determine the best U.S. immigration solution for meeting his or her investment goals.

Special Qualification/Essential Employee Capacity

An employee in a lesser capacity who has special qualifications relating to the successful or efficient operation of the E2 enterprise may be eligible to serve in an essential employee capacity.¹¹ The Board of Immigration Appeals' decision in Matter of Walsh and Pollard [PDF version] established precedent that the “develop and direct” requirement is only applicable to E2 treaty investors.¹²

In determining whether an applicant will serve in an essential employee capacity, DOS instructs officials to consider the following:

The applicant's degree of proven expertise in the operations involved;
The uniqueness of the applicant's skill or aptitude;
The length of the applicant's experience and/or training with the firm;
The period of training or other experience necessary to perform the projected duties;
The proposed salary the special qualifications can command.¹³

The regulations instruct that whether the “special qualifications” in a given case are “essential” should be ascertained on a case-by-case basis.¹⁴ In many situations, a skill may be “essential” at one point (e.g., for helping to start up an enterprise or training U.S. employees) may not continue to be essential indefinitely. In this way, an employee may be eligible for an E2 visa as an employee at one point in the enterprise's operations but may not be able to demonstrate eligibility for an extension of E2 status. However, the regulations contemplate that it is possible to establish “long-term essentiality” on a case-by-case basis where the special qualifications are in an area such as product improvement or quality control, or where the provision of the service is not generally available in the United States.

The BIA accepted the FAM's essential skills test in Walsh and Pollard.¹⁵ The board held that the employees in question were classifiable as E2 where they were coming to the United States to work as essential employees for a subsidiary (the E2 employer) that was created to fulfill a specific contractual agreement with General Motors.¹⁶ The Board held that the E2 employees were demonstrably better qualified than available U.S. employees and that their services were essential to the fulfillment of the contract and not for purpose of filling vacancies at a U.S. business, thus establishing long-term essentiality.¹⁷

The FAM instructs consular officers that the burden is upon the applicant to establish both the need for his or her skills and the duration for which the skills will be needed.¹⁸ Consular officials are instructed to consider the availability of U.S. workers with similar skills in order to determine both the degree of specialization of the applicant's skills and the need for the applicant's services.¹⁹

While E2 employmee visas are generally not for ordinary skilled workers, an ordinary skilled worker may qualify if he or she is applying to work for start-up or training purposes.²⁰ A qualifying applicant for this purpose will likely have experience with the E2 employer, and consular officials may ask for a set time-frame within which the E2 employer will replace the E2 employee with a U.S. employee.²¹ However, there is no generalized requirement that E2 employees serving in an essential employee capacity have previous experience with the E2 employer.²²

USCIS regulations instruct officers that knowledge of a foreign language, culture, country conditions, or previous employment do not, standing alone, satisfy the eligibility requirements for an E2 employee serving in an essential employee capacity.

“Job Shop” Employment Prohibition

“Job shop” employment, where the E2 employer would pay a worker to work at another U.S. company, is prohibited for E2 classification.²³ In this circumstance, the employer may instead consider if the prospective employee may be eligible for a different classification such as H1B [see blog].

Intention to Depart Requirement

The applicant's expression of unequivocal intent to depart the United States upon the termination of E2 status is generally sufficient for meeting this requirement.²⁴ If the applicant is the beneficiary of an approved immigrant visa petition, he or she may still establish the intent to depart at the termination of his or her E2 status.²⁵

Nationals of Canada and Mexico

Nationals of Canada and Mexico are ineligible for E visas if there is a strike or lockout at the place of employment unless the applicant establishes that his or her admission will not affect adversely the settlement of the strike or lockout.²⁶

Application Process for an E2 Employee Visa

The filing (but not evidentiary) requirements are the same as for E2 treaty investors [see article]. If the applicant is seeking change to E2 status from in the United States, he or she must file a Form I-129, Petition for a Nonimmigrant Worker along with an E Supplement. If the applicant is filing at a consular post abroad, he or she must file a DS-160 visa application along with a DS-156E supplemental form. The initial visa validity period will depend on the specific treaty country, but in most cases will be 5 years.

Maintaining and Extending Status as an E2 Employee

An E2 employee may be admitted for an initial period of up to, but not exceeding, 2 years.²⁷ An E2 employee may apply for an extension of stay before his or her period of stay expires by filing a Form I-129 and E Supplement, and, if granted, the extension will be for a maximum of 2 years.²⁸ In order to be eligible for an extension, the E2 employee must have maintained lawful E2 status and have been physically present in the United States at the time of the filing of the application.²⁹ There is no limit to the number of extensions that an E2 employee may receive. However, the E2 employee will have to demonstrate his or her continued eligibility for E2 status. USCIS regulations instruct that employees with special qualifications who are responsible for start-up operations should be able to complete their objectives within 2 years and will only be approved for an extension of stay under “special circumstances.”³⁰

An E2 employee may only engage in employment authorized by his or her E2 status.³¹ Pursuant to 8 C.F.R. 214.2(e)(8)(ii), an E2 employee may perform work for a parent or subsidiary of his or her E2 employee without the need to file an amended Form I-129 if:

(A) The primary E2 employer and any subsidiaries thereof had a qualifying parent-subsidiary relationship at the time of the last approval of the E2 visa, and the subsidiary independent qualifies as a treaty organization or enterprise;
(B) The work requires an executive, supervisor, or essential skill position;
(C) The work is consistent with the terms and conditions of the activity that the E2 employee was initially approved to perform.

This provision should be exercised with great care, however, because an unauthorized change of employment would render the E2 employee out of lawful status.³²

If there is a substantive change of employment, an amended Form I-129 with a new E supplement must be filed along with a request for an extension of stay.³³ The amended petition must thoroughly explain the change in employment and demonstrate that the employee should still be eligible to maintain E2 status. Where a change is not “substantiative” (the change does not have an effect on the E2 employee's eligibility), an amended petition is not necessary.³⁴ If an E2 employer and employee are unsure if a change is substantive, the employee may file a Form I-129, with fee, along with a complete description of the change, and seek an advisory opinion from USCIS on whether an amended petition is needed.³⁵

Derivative E2 Family Members

The rules for E2 derivatives are the same for all E2 visa-holders. Spouses and children of E2 employees are eligible for derivative E2 visas if otherwise admissible.³⁶ A derivative E2 beneficiary may be admitted for the same period as the principal and is eligible for extensions of stay along with the principal (provided that the qualifying relationship remains applicable).³⁷ E2 derivative spouses may apply for and obtain an employment authorization document (EAD).³⁸ E2 derivative children may not obtain employment authorization but may attend school while on E2 status.³⁹

Advice for E2 Employees Visas

E2 visas for employees of treaty investors or organizations are effective tools for helping to ensure the effective operation of an E2 organization. Furthermore, as we discussed earlier, the E2 visa for employees may be an effective investment immigration option for an investor who cannot meet the requirements for obtaining an E2 visa as a treaty investor. Due to the complicated evidentiary requirements and the myriad of immigration options available, a person considering an E2 visa as an employee should consult with an experienced immigration attorney both in order to determine whether an E2 visa is the right choice to meet his or her immigration goals, and for guidance in obtaining an E2 visa if it is.

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1. 9 FAM 41.51 N.3.3
2. Id.
3. 9 FAM 41.51 N14.1
4. 22 C.F.R. § 41.51(b)(12)
5. Id.
6. 22 C.F.R. § 41.51(b)(12)(i)
7. 22 C.F.R. § 41.51(b)(12)(ii)
8. 9 FAM 41.51 N14.2 [for the list]
9. Id.
10. 8 C.F.R. § 214.2(e)(17)(iii)
11. 22 C.F.R. § 41.51(b)(13)
12. Matter of Walsh and Pollard, 20 I&N Dec. 60 (BIA 1988)
13. 22 C.F.R. § 41.51(b)(13)(i) [for the list]
14. 22 C.F.R. § 41.51(b)(13)(ii) [for the paragraph]
15. 9 FAM 41.51 N13
16. 9 FAM 41.51 N13; Matter of Walsh and Pollard, 20 I&N Dec. 60 (BIA 1988)
17. Id.
18. 9 FAM 41.51 N14.3
19. 9 FAM 41.51 N14.3-2
20. 22 C.F.R. § 41.51(b)(13)(ii); 9 FAM 41.51 N14.3-3
21. 9 FAM 41.51 N14.3-3
22. 9 FAM 41.51 N14.3-4
23. 9 FAM 41.51 N13.1; Letter, Lorr, Acting Chief, Benefits Division, INS, HQ 70/6.2.5-6 (Aug 28, 1996), reprinted in 73 No. 37 Interpreter Releases, 1290, 1311-14 (Sept 30, 1996)
24. 9 FAM 41.51 N15
25. Id.
26. 8 C.F.R. § 214.2(e)(22); 22 C.F.R. § 41.51(a)(13)
27. 8 C.F.R. § 214(e)(19)(i)
28. 8 C.F.R. § 214.2(e)(20)
29. Id.
30. 8 C.F.R. § 214.2(e)(20)
31. 8 C.F.R. § 214.2(e)(8)(i); Matter of Laigo, 15 I&N Dec. 65 (BIA 1974)
32. 8 C.F.R. § 214.2(e)(8)(vii)
33. 8 C.F.R. § 214.2(e)(8)(iii)
34. 8 C.F.R. § 214.2(e)(8)(iv)
35. 8 C.F.R. § 214.2(e)(8)(v)
36. 8 C.F.R. § 214.2(e)(4); 22 C.F.R 41.51(b)(3)
37. Id.
38. INA § 214(e)(6); Cable, DOS, 02-State-17328 (Jan. 29, 2002), published on AILA InfoNet at Doc. No 02013032
39. IFM §§ 15.4(e), 15.5(d). Dependent sons and daughters of Taipei Economic and Cultural Representative Office employees may obtain an EAD [8 C.F.R. § 274a.12(c)(2); 9 FAM 41.22 PN4

Resources and Materials:

Chang, Henry J.. “E-2 Visas for Investors in Smaller Businesses.” Immigration Options for Investors and Entrepreneurs. 2nd ed. Washington, D.C.: AILA, 2010. 13-31. Print. AILA's Occupational Guidebooks.

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1012-1017, Print. Treatises & Primers.