What are the general requirements for a foreign employee to be able to qualify for an E-2 visa to work in the U.S. E-2 company?
To qualify for E-2 classification, the employee of a treaty investor must:
Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
Meet the definition of “employee” under relevant law
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
The Two Types of E-2 Employee Visas
Executive/Supervisor/Manager: The applicant’s duties must be principally and primarily, executive or supervisory in nature. These are duties which provide the applicant ultimate control and responsibility for the enterprise's overall operation or major component. Executives have great authority to determine company policy and typically have supervisory responsibility for a significant proportion of a company’s operations and does not generally involve the direct supervision of low-level employees. Generally, these employees possess executive and supervisory skills and experience and have a salary and position title commensurate with executive or supervisory employment.
Essential/Specialized Employee: These employees possess special qualifications or skills which make the employee’s services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to:
The degree of proven expertise in the employee’s area of operations
Whether others possess the employee’s specific skills
The salary that the special qualifications can command
Whether the skills and qualifications are readily available in the United States.
Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.
How long can the employee stay and work in the United States?
E-2 employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted, but the employee must maintain an intention to depart the United States when their status expires or is terminated. An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.
E-2 employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. Spouses of E-2 workers may apply for work authorization and there is no specific restriction as to where the E-2 spouse may work.
If you own an E-2 company and would like to bring an executive or essential employee, please contact us for a consultation. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn or Tumblr for up-to-date immigration news.
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