E2 Visa for Foreign Employees
Generally, if the applicant is not the principal investor, he
or she must be employed in an executive or supervisory capacity,
or possess skills that are highly specialized and essential to the
operations of the commercial enterprise. Ordinary skilled or unskilled
workers do not qualify.
INVESTOR MUST PERSONALLY OPERATE BUSINESS IN ORDER TO
BRING FOREIGN EMPLOYEES TO US ON E2 VISA
If the majority owner of the E2 enterprise wishes to enter the
United States as an investor, or send an employee to the United
States, the owner must demonstrate that he or she personally develops
and directs the enterprise. Likewise, if a foreign corporation owns
at least 50 percent of a US enterprise, and wishes its employee
to enter the US as an employee of the parent corporation, or as
an employee of the US subsidiary company, the foreign corporation
must demonstrate it develops and directs the US company.
In instances in which treaty country ownership may be too diffuse
to permit one individual or company to demonstrate the ability to
direct and develop the US enterprise, the owners of treaty country
nationality must:
1. Show that together they own 50 percent of the US enterprise;
and
2. Must demonstrate, that at least collectively, they have the
ability to develop and direct the US enterprise.
In these cases an owner may not receive an E2 visa as the "investor".
Rather, all E2 visa recipients must be shown to be an employee of
the US enterprise coming to the US to fulfill the duties of an executive,
supervisor, or essentially skilled employee.
GENERAL EMPLOYEE REQUIREMENTS
In order to qualify to bring an employee into the United States,
the prospective US employer must be maintaining E2 status. In order
to qualify to bring an employee into the United States, several
criteria must be met:
1. The prospective employer must meet the nationality requirement,
i.e., if an individual, the nationality of the treaty country or,
if a corporation or other business organization, at least 50 percent
of the ownership must have the nationality of the treaty country.
Note that a permanent resident alien does not qualify to bring in
employees under the E2 visa program. Moreover, shares of a corporation
or other business organization owned by permanent resident aliens
cannot be considered in determining majority ownership by nationals
of the treaty country to qualify the company for bringing in alien
employees under the E2 visa;
2. The employer and the employee must have the same nationality;
and
3. The employer, if not resident abroad, must be maintaining E2
visa status in the United States.
EXECUTIVE AND SUPERVISORY EMPLOYEES
In evaluating whether the employee qualifies as an executive or
supervisory personnel, the following factors are considered:
1. The title of the position to which the applicant is destined,
its place in the firm’s organizational 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 a major component thereof, the number and skill levels of the
employees the applicant will supervise, the level of pay, and whether
the applicant possesses qualifying executive or supervisory experience;
2. Whether the executive or supervisory element of the position
is a principal and primary function and not an incidental or collateral
function. For example, if the position principally requires management
skills or entails key supervisory responsibility for a
large portion of a firm’s operations and only incidentally
involves routine substantive staff work, an E classification would
generally be appropriate. Conversely, if the position chiefly involves
routine work and secondarily entails supervision of low-level employees,
the position could not be termed executive or supervisory; and
3. The weight to be accorded a given factor, which may vary from
case to case. For example, the position title of “vice president”
or “manager” might be of use in assessing the supervisory
nature of a position if the applicant were coming to a major operation
having numerous employees. However, if the applicant were coming
to a small two-person office, such a title in and of itself would
be of little significance.
ESSENTIAL OR SPECIAL SKILLED EMPLOYEES
In addition, the law provides E2 visa classification for employees
who have special qualifications that make the service to be rendered
essential to the efficient operation of the enterprise. The employee
must, therefore, possess specialized skills and, similarly, such
skills must be needed by the enterprise. The burden of proof to
establish that the applicant has special qualifications essential
to the effectiveness of the firm’s United States operations
is on the company and the applicant.
The applicant bears the burden of establishing at the time of application
not only the need for the skills that he or she offers but, also,
the length of time that such skills will be needed. In general,
the E2 classification is intended for specialists and not for ordinary
skilled workers. There are, however, exceptions to this generalization.
Some skills may be essential for as long as the business is operating.
Others, however, may be necessary for a shorter time, such as in
start-up cases.
Although there is a broad spectrum between the extremes set forth
below, consular officers may draw some perspective on this issue
from these examples:
1. Long-term need - The employer may show a need for the skills
on an on-going basis when the employee(s) will be engaged in functions
such as continuous development of product improvement, quality control,
or provision of a service otherwise unavailable.
2. Short-term need - The employer may need the skills for only
a relatively short (e.g., one or two years) period of time when
the purpose of the employee(s) relate to start-up operations (of
either the business or a new activity by the business) or to training
and
supervision of technicians employed in manufacturing, maintenance
and repair functions.
Once the business has established the need for the specialized
skills, the experience and training necessary to achieve such skills
must be analyzed to recognize the special qualities of the skills
in question. The question of duration of need will cause variances
among the kinds of skills involved. Not least, the visa applicant
must prove that he or she
possesses these skills, by demonstrating the requisite training
and/or experience.
In assessing the specialized skills and their essentiality, the
following factors are considered:
1. Degree of proven expertise of the alien in the area of specialization;
2. The uniqueness of the specific skills;
3. The function of the job to which the alien is destined; and
4. The salary such special expertise can command.
The claimed duration of essentiality depends largely on the period
of training needed to perform the contemplated duties and, in some
cases, the length of experience and training with the firm.
The availability of US workers provides another factor in assessing
the degree of specialization the applicant possesses and the essentiality
of this skilled worker to the successful operation of the business.
This consideration is not a labor certification test, but a measure
of the degree of specialization of the skills in question and the
need for such. For example, a TV technician coming to train US workers
in new TV technology not generally available in the U.S. market
probably would qualify for a visa.
If the essential skills question cannot be resolved on the basis
of initial documentation, the consular officer might ask the firm
to provide statements from such sources as chambers of commerce,
labor organizations, industry trade sources, or state employment
services as to the unavailability of US workers in the skill areas
concerned.
The criteria above are used to assessed whether the employee is
essential for the efficient operation of enterprise for an indefinite
period or for a shorter period. It might be determined that some
skills are essential for as long as the business is operating. There
may be little problem in assessing the need for the employee in
the United States in the short term, such as start-up cases. Long-term
employment presents a different issue, in that what is highly specialized
and unique today might not be in a few years. It is anticipated
that such changes would more likely occur in industries of rapid
development, such as any computer-related industry. Although this
may not be fully determinable at the time of initial application,
the consular officer should monitor this at the time of any application
for re-issuance. The alien at that time will bear the burden of
establishing that his or her specialized skills are still needed
and that the applicant still possesses such skills.
Essential employees possess skills which differentiate them from
ordinarily skilled laborers. If an alien establishes that he or
she has special qualifications and is essential for the efficient
operation of the E2 enterprise for the long term, the training of
United States workers for as replacement workers is not required.
In some cases, ordinarily skilled workers can qualify as essential
employees, and almost always this involves workers needed for start-up
or training purposes. A new business or an established business
expanding into a new field in the United States might need employees
who are ordinarily skilled workers for a short period of time. Such
employees derive their essentiality from their familiarity with
the overseas operations rather than the nature of their skills.
The specialization of skills lies in the knowledge of the peculiarities
of the operation of the employer’s enterprise rather than
in the rote skill held by the applicant. To avoid problems with
subsequent applications, consular officers might find, at the time
of the original application, that it is best to set a time frame
within which the business must replace such foreign workers with
locally hired employees.
There is no requirement that an essential employee have any previous
employment with the enterprise in question. The only time when such
previous employment is a factor is when the needed skills can only
be obtained by that employment. The focus of essentiality is on
the business needs for the essential skills and of the alien’s
possession of such. Firms may need skills to operate their business,
even though they do not have employees with such skills currently
on their employment rolls.
FOR CONSULTATION WITH AN IMMIGRATION ATTORNEY, PLEASE CALL
US AT (626) 279-5341 OR E-MAIL US AT: INFO@E2VISALAWYER.NET. AN ATTORNEY IN OUR OFFICE WOULD
BE HAPPY TO ASSIST YOU.
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