E2 Visa for Foreign Employees and not the Main Investor

Last Update: November 13, 2017

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By Gokhan Yazici, YaziciLaw.com

E2 treaty investment visas are for business people from certain countries with which the United States maintains a treaty of commerce and navigation. It is designed for foreign investors who bring substantial investment that is sufficient to buy an existing business in the U.S. or start up a new business from scratch. Principal investor is required to demonstrate that he or she has an active role in the business and personally develops and directs the U.S. enterprise.

  • Aside from the principal investor there is another category of person(s) in this type of visa who may also qualify for an E-2 visa. The person who will be employed by the business who is deemed to be essential to the efficient operation of the enterprise can too obtain an E-2 visa as long as he or she meets various decisive factors. This visa is also known as “essential employee E2 visa” or “key employee E2 visa”. The employee must be of the same nationality as the principal E2 visa holder, i.e. the principal investor. The main visa holder must either solely own the business or own 50% or more controlling shares in a business with a US partner.
  • The employee must not occupy a position or do a job in the business that a suitably qualified American citizen could occupy or do.
  • The employee must be in a supervisory or managerial role or have such special skills that make them indispensable in the running of the business.
  • If the employee is to be occupied in a supervisory role, the business must be sufficiently large for the employee to be supervising a major part of the business. It is not acceptable, for instance, for the E2 employee to be supervising only lower level employees in the same business.
  • If the employee is to be employed because of their ‘special skills’, these skills will be carefully examined by the visa adjudicating officers. These skill sets must be assessed to ascertain whether the person has sufficiently unique skills or has extensive experience and qualifications in the job they will be expected to do and a suitable salary to go with it. Therefore, proven expertise in the area of operations; uniqueness or essentiality of the specific skills; function of the job; salary that such expertise command will be considered in adjudicating these petitions. The language and culture may be considered only if these skills are essential to the position and enterprise.

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