Visa Applications: Part 2 of What is an E-2 Treaty Investor Visa?

Are you wondering if you qualify or are eligible for an E-2 Treaty Investor Visa? Is it possible to work for a business as a manager or essential employee and be approved for a visa as a result of this position? Jeffrey Olsen is an experienced and knowledgeable immigration attorney who has represented clients in filing E-2 visas as well as many other immigration applications. This post aims to answer the above questions and more. However, if you have any specific questions about E-2 Visas or other immigration matters, please contact our office today to schedule an appointment.

The E-2 Treaty Investor Visa is a nonimmigrant visa available to nationals of countries which have a treaty of commerce and navigation with the United States, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation. You can find a list of these countries on the State Department's website.

An E-2 Employee must be an executive, manager, or essential employee of the company.

In Part I, we looked at "E-2 Investors" and the criteria for qualification. In today's post, we are going to look at "E-2 Employees." An E-2 Employee is an executive, manager, or essential employee of a company owned by a qualified E-2 Investor.

First, in order for an E-2 Investor to qualify to bring an E-2 employee into the United States the following must be met:

1. Prospective employer must meet the nationality requirement;

2. Employer and the employee must have the same nationality; and,

3. Employer must be maintaining "E status" if residing in the U.S.

For executives and managers these are some of the factors that are assessed:

1. The Applicant's Position with the Company

   1. What is the Applicant's job title?

   2. Where does this position fall in the organizational structure?

   3. Will the Applicant be supervising anyone?

   4. Does the Applicant have any supervisory experience?

   5. Will the Applicant have control or responsibility for the company's operations?

   6. What is the Applicant's salary?

      
      

2. The Executive/Managerial aspect of the Position is a principal and primary function and not an incidental or collateral function.

   1. Does the position primarily involve executive and managerial functions with routine work secondary or does it primarily involve routine staff work with executive or managerial responsibilities secondary?

      
      

3. The weight afford to each factor is evaluated on a case-by-case basis and based on the circumstances.

   1. If a person is the "Chief Financial Officer" of a company with 100 employees, 20 of which are within the finance department, then that will weigh more heavily in the Applicant's favor than someone given the title "Chief Financial Officer" of a company with 3 total employees.

For Applicants who are attempting to meet the criteria as an "essential employee" rather than in a supervisory or executive capacity, the employee must:

1. Possess specialized skills; and

2. The skills must be needed by the enterprise

The burden of proof in establishing both of these belongs to the Company and the Applicant. Once you have met your burden of proving the company needs the skills then the following criteria is used to assess whether 1) the skills are "specialized" and 2) whether the Applicant possesses them:

1. The experience and training necessary to achieve such skill(s);

2. The uniqueness of such skills;

3. The availability of U.S. workers with such skills;

4. The salary such special expertise can command;

5. The degree of proven expertise of the applicant in the area of specialization; and

6. The function of the job to which the applicant is destined.

One last item to touch on is questions surrounding the duration of the employee's essentiality to the business. This burden also falls on the Applicant and the Company. More precisely, the burden at the time of initial application and all subsequent applications (if applicable) is to prove that the Applicant not only possesses the specialized skills but that the skills will be needed for _____ amount of time. In some instances the employee may only be "essential" for a brief period of time while in others, the employee may be "essential" for the life of the business.

Thank you for taking the time to read this post as part of the nonimmigrant visa series. We hope you found this post informative. If our firm can be of any assistance in helping you with an E-2 Visa application or any other immigration matter, please do not hesitate to reach out today.

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The information in this blog is provided solely for informational purposes. The information provided is not intended to create an attorney-client relationship and shall not be construed as legal advice on any specific matter. Each legal matter is unique and requires an analysis based on the particular circumstances. As a result, the information provided here may not be applicable in every situation, including your situation, and action should not be taken based on this information without seeking specific legal advice based on particular circumstances. Results may vary depending on your particular facts and legal circumstance.