Employees of E-2 Treaty Investors
E-2 nonimmigrant status offers treaty investors the opportunity to start a business, work for themselves, and stay in the United States indefinitely and is therefore an attractive option for treaty investors who wish to work in the US. Immigration regulations also allow E-2 status to be granted to qualifying employees of E-2 investors if the employees will be engaging in the duties of an executive or supervisory position, or if an employee has special qualifications which render that employee's services essential to the efficient operation of the enterprise. Also, those employees seeking E status must have the same nationality as the employer. If the employer is an organization rather than an individual, the organization must be at least 50 percent owned by people with that nationality.
Executive or Supervisory Position
Executive or supervisory duties make the employee responsible for the enterprise's overall operation or at least a significant part of it. An executive position provides the employee great authority to determine policy of and direction for the enterprise. A supervisory position grants the employee supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees. The executive or supervisory element of the employee's position must be a principal and primary function of the position and not an incidental or collateral function. When determining whether a position could be considered executive or supervisory, factors can include: the positions titles and duties, its place in the enterprise's organizational structure, the degree to which the applicant would have ultimate control and responsibility for the company's operations, the number and skill levels of the employees the applicant would supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience.
With the ongoing need to show that an employee's special qualifications are essential to the treaty enterprise, it may not be advisable for investors to seek E-2 status in this capacity. It is always advisable to seek out an immigration attorney for more specific guidance in this area. However, special qualifications can often be used to bring other foreign nationals into the United States as employees of the treaty enterprise.
As the "special qualifications" language suggests, E classification is intended for specialists as opposed to ordinary skilled workers. During the application process, applicants must show not only the need for their special qualifications or essential skills, but also the length of time that such skills will be needed. The essential nature of the applicant's skills to the operation of the enterprise is determined by considering factors such as: the ability of the applicant in the area of operations involved, the uniqueness of the specific skill, the applicant's length of experience and training with the company, and the salary that the special qualifications can command. The availability or unavailability of US workers in the desired capacity can also come into play, but all of these factors are overall considerations and not specific requirements in and of themselves. There are also two different types of essential skilled workers, namely, short-term and long-term. The requirements differ based on which type is being applied for.
The most important difference between short-term and long-term may be the notion of replacement for the short-term worker. Often, the employer may need the employee's skills for a relatively short timespan if the employee's admission relates to start-up operations or to the training and supervision of technicians employed in manufacturing, maintenance, and repair functions. Since skilled workers can qualify as essential employees in this manner, a new business or an established business moving into a new field in the United States might need employees who are ordinarily skilled workers for a short period of time. The essential nature of these employees comes from their familiarity with the overseas operations as opposed to the nature of their skills. Employers in such cases will be expected to train US workers to replace these employees, usually within a year or two.
On the other hand, long-term essentiality may be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States. Therefore, an applicant who establishes that he or she has special qualifications and that on a long-term basis those qualifications are essential for the efficient operation of the treaty enterprise, the training of US workers as replacement workers will not be required. This makes it possible for such an employee to remain in the United States in E-2 status for an indefinite period of time.
The E-2 visa process can be a great fit for a foreign investor or employee, but other visas such as the EB-5 or L-1B might be more appropriate depending on an individual's circumstances. It is extremely important when making decisions regarding immigration or exploring opportunities for nonimmigrants that you contact a qualified attorney who can guide you through the process. The attorneys at The Law Firm of Shihab & Associates, Co., LPA have many years of experience navigating the paperwork and visa options for E-2 treaty investors as well as other immigrant and nonimmigrant work from H-1B visas to removal proceedings. If you or a loved one is in need of professional guidance, please contact the office nearest you and speak with an attorney today.