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, the foreign parent entity must demonstrate it develops and directs the US company.
In instances where 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. 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 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 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 eligibility 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 organization’s US operations is on the company and the applicant.
The applicant bears the burden of establishing at the time of E2 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 employee visa 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 businesses.
Although there is a broad spectrum between the extremes set forth below, visa 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 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.
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 E2 employee 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 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.
The 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 company.
The availability of US workers provides another factor in assessing the degree of specialization the E2 employee 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 US market could qualify for an E2 essential employee visa.
If the essential skills question cannot be resolved on the basis of initial documentation, the visa officer might ask the employer 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 businesses. 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 E2 application, the visa officer should monitor this at the time of future E2 renewal application. The foreign employee has the burden of establishing that his or her specialized skills are still needed and that the foreign national still possesses such skills in E2 renewals.
Essential employees possess skills which differentiate them from ordinarily skilled laborers. If the foreign employee establishes that he or she has special qualifications and is essential for the efficient operation of the US enterprise for the long term, the training of US workers 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 E2 applicant. To avoid problems with subsequent applications, visa officers might find, at the time of the original E2 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 foreign employee’s possession of such. Employers may need skills to operate their businesses, even though they do not have employees with such skills currently on their employment rolls.
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