The Two Types of E-2 Employee Visas

The investor must invest in the U.S. and ultimately hire U.S. workers but the law does not mandate a specific investment amount or number of employees that must be hired. More information on the requirements for an E-2 Investor visa can be found here.

An E-2 visa can also be a great option for a manager, executive, supervisor or specialist who wants to work as an employee of an E-2 business. E-2 employees have the same ability as investors to bring their spouses and children on derivative E-2 visas. Spouses of E-2 employees can apply for employment authorization to work anywhere in the U.S. and children of E-2 employees can attend school.

The requirements for the two types of E-2 Employee visas, categorized as supervisory/executive and specialized/essential, are discussed below. Although these two types of E-2 visas have different requirements, they are both subject to the nationality requirement, meaning the E-2 employee must have the same nationality as the E-2 investor/employer and they must intend to depart the U.S. when the E-2 visa is terminated. Additionally, if the E-2 investor/employer is living in the U.S., he/she must be maintaining valid E-2 status.

E-2 Employee – Supervisory/Managerial/Executive

An E-2 applicant who seeks to be classified as a manager, executive or supervisor must demonstrate that he/she is primarily performing executive or supervisory tasks and has a high degree of responsibility within the organization, as well as control over the entire company or over key functions of the company. Applicants demonstrate this control and responsibility in the E-2 company by submitting organizational charts showing the company structure, a job description that illustrates the duties that will be performed, a resume that shows the applicant has the requisite expertise and a letter from the E-2 company, describing the business, job and employee qualifications. The job title and salary are good indicators of whether the position will be classified as a supervisory/executive position.

E-2 – Specialized/Essential

An applicant seeking E-2 classification as an essential employee must demonstrate specialized and unique knowledge or skills that are essential to the success of the E-2 business. The applicant must be able to prove that their skills are specialized and that they have unique expertise that is necessary for this specific E-2 business. Other factors to consider are the salary offered for the position, the amount of experience or training that is required to gain the expertise, whether U.S. workers would be likely to have the skills or expertise and how long the business will need the employee for.

One important thing to take into account is how long the applicant would like to work at the E-2 business. E-2 applicants and employers should examine their situation and determine if they will need the employee in the short-term or the long-term. It is easier to show that the specialized skills are necessary in the short-term, either as part of the company’s start-up activities or for the training and supervision of other employees who will ultimately perform the specialized tasks. It can be more challenging for the applicant to show that their skills are essential in the long-term, as this requires the E-2 company and the applicant to prove that the skills will be needed continuously and are specialized to the extent that a U.S. worker could not be trained to take over the position. However, E-2 employers may be able to show that the applicant is needed on a long-term basis if the applicant is involved in the creation of a specialized product or can provide skills or expertise that are not readily available in the U.S.

For more practical or legal advice contact Scott Legal, P.C.. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support.

Call 212-223-2964 or email Kelly Weiner at kweiner@legalservicesincorporated.com for a consultation.  Ms. Weiner is an associate in our New York office that focuses on immigration law.  Ms. Weiner can be reached by calling 212-223-2964.

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