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An individual with an E-2 Investor visa status can qualify a foreign employee for the E-2 Employee visa if:

• The E-2 Investor personally develops and directs the U.S. business. They must maintain E-2 visa status.
• The E-2 Investor must own 50% or more of the U.S. business
• The E-2 Investor may only hire a foreign employee of the same treaty country nationality.

A foreign corporation with a U.S. business can qualify a foreign employee for the E-2 Employee visa as an employee of the foreign parent company or as an employee of the U.S. subsidiary if:

• The foreign parent entity demonstrate it develops and directs the US company
• The foreign parent entity must have at least 50% ownership of the U.S. company
• The 50% ownership must be held by the same treaty country national as the employee being sponsored for E-2 Employee visa

If there are multiple owners of the foreign parent entity, then the collective 50% ownership must consist of individuals who all have the same treaty country nationality as the employee being sponsored for E-2 Employee visa; and they must demonstrate that they collectively develop and direct the U.S. company.

There are two types of E-2 employee categories:

The first is Managerial Employee (executive and supervisory role), where the company is sufficiently large in terms of staff size to justify the E-2 investor's need to hire another manager to help operate the business.  The E-2 employee visa applicant needs to possess strong and relevant managerial experience, training, and/or education to qualify for E-2 managerial employee visa.

The second category is E-2 Essential Skilled Employee Visa (essential or special skilled role) for candidate with specialized and unique skills that are critical for the operation of the business. The company will need to conduct good faith recruitment of US workers and prove that there is no qualified US worker to fill the position.

Several factors are considered when evaluating whether an employee qualifies as an executive or supervisory personnel for the E-2 Visa.

1. General factors include: The position's title, duties, control over operations, supervision of other employees, salary level, and the applicant's relevant experience to determine the role's significance within the organizational structure
2. The must be for 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 an organization’s operations and only incidentally involves routine substantive staff work, an E2 managerial employee visa 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 assigned to different factors described above will depend on the context: 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.

The employee possesses specialized and essential skills crucial to the operation of the enterprise. The necessity of these skills, their duration of need, and the unavailability of such skills among the local U.S. workforce would demonstrate a foreign employee’s crucial role within the US business's operations. The following factors are considered when determining the employee’s specialized and essential skills:

1. Degree of proven expertise of the E2 employee in the area of specialization;
2. The uniqueness of the specific skills;
3. The function of the job to which the E2 employee is destined; and
4. The salary such special expertise can command.

In addition to proving the skills, the applicant also must present the length of time that the skill is needed.

1. Long-term need – The employer may show a need for the skills on an on-going basis when the E2 employee 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 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.

Ordinarily skilled workers can be seen as essential in specific scenarios, which is often associated to start-up or training purposes.

In this specific scenario, the skilled work is based on their familiarity with the overseas operations rather than the uniqueness of their skills.

The skilled worker’s value is based on their understanding of the employer’s operational peculiarities, not just in their skills. Ordinary skilled foreign workers are expected to be replaced with locally hired U.S. employees within a certain time frame.

For more detailed information go to Foreign Employees

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