Potential Changes to E-2 Visa Employee Requirements: What to Know

The E-2 visa is a popular option for investors seeking to establish or manage a business in the United States. A key component of the E-2 program involves the ability to hire workers, including bringing employees from abroad. However, policies adopted under Trump’s first term suggest stricter scrutiny on E-2 visa employees could be on the way.

An E-2 visa company can bring foreign employees to the U.S. under the E-2 employee visa, provided:

• The employee shares the same nationality as the E-2 investor.
• The employee fulfills specific roles, such as executive, supervisory, or essential personnel with specialized knowledge critical to the company’s operations.

Hiring U.S. workers is also a significant focus of the E-2 program, as the visa requires a business to create jobs for American workers over time.

Under stricter immigration policies in effect during Trump’s first term, such as “Buy American, Hire American,” there may be additional scrutiny on applications for E-2 employees on the way. Possible changes include:

• Increased Focus on U.S. Worker Availability: Companies may need to demonstrate that no qualified U.S. workers are available for the role before hiring foreign nationals under an E-2 employee visa.
• Higher Burden of Proof: Employers may face more rigorous requirements to justify the necessity of bringing in foreign employees, including detailed documentation about job requirements and recruitment efforts.
• Stricter Evaluations of Specialized Knowledge: Companies might need to provide more evidence that foreign employees possess unique skills unavailable in the U.S. workforce.

To mitigate the impact of stricter policies on E-2 employee applications:

• Document Recruitment Efforts: Maintain clear records of attempts to hire U.S. workers, including job postings, resumes reviewed, and interview outcomes.
• Highlight Specialized Knowledge: Clearly explain why the foreign employee’s skills are critical to the business and why similar expertise is unavailable locally.
• Ensure Compliance: Work closely with an immigration attorney to ensure your application meets evolving standards.

E-2 visa holders should prepare for the possibility of increased scrutiny on employee applications. Demonstrating your commitment to hiring U.S. workers and providing comprehensive evidence for the necessity of foreign employees can help strengthen your case. For guidance on navigating these changes, Scott Legal, P.C. is here to assist.