The E-2 visa allows investors who are nationals of treaty countries to start or purchase a company in the U.S. and come to the U.S. to develop and direct that company. The investor must make a substantial investment into the company and prove that the company is, or will be, a real and operating business that will hire employees in the U.S.
It is very common for family members to work together and investors often ask two questions about family members:
- Can I hire my family to work for my company?
- Will hiring family members help me meet the E-2 marginality requirement?
The short answers to these questions are (1) yes and (2) no. Below we will discuss more nuanced answers to each of these questions.
- You may hire family for your E-2 company only if they are authorized to work in the U.S.; E-2 spouses can work, but E-2 children cannot.
- Hiring family members does not satisfy the E-2 marginality requirement; the business must support more than the investor and their family.
- To strengthen your E-2 case, particularly at renewal, hire unrelated U.S. workers and discuss staffing plans with your immigration attorney.
Can I hire my family to work for my E-2 company?
Yes, you can hire your family members to work for your E-2 company if they are authorized to work in the U.S. Let us look at some common scenarios:
E-2 Spouse
The spouse of an E-2 investor is eligible for an E-2 spousal visa which provides work authorization. As of January 2022, E-2 spouses do not need to apply for a separate employment authorization document, they can work based solely on their E-2 spousal status, which should be annotated on their I-94 status document as E-2S. E-2 spouses can work anywhere in the U.S., including self-employment and employment at the E-2 company.
E-2 Children (unmarried children under 21)
E-2 dependent children are not eligible to work in the U.S. based on their E-2 dependent visas so they cannot work for the company.
Adult Children, Parents, Siblings or Other Relatives Eligible for E-2 Employee Visas
If you have adult children or other relatives who share your treaty country nationality and they have work experience that would allow them to be fairly classified as an E2 employee under the executive, managerial, supervisory or essential employee category, these relatives may apply for an E-2 employee visa to work for your company.
Relatives Living in the U.S. with green cards or US citizenship
Many E-2 investors have family members living in the U.S. who have a green card or U.S. citizenship. Green card holders and U.S. citizens can legally work in the U.S. and can be hired to work for the E-2 company.
Hiring Family and the E-2 Marginality Requirement
To meet the marginality requirement, the investor must show that the E-2 company will have the ability to support more than just the investor and their family. This means that hiring family members, particularly immediate family members, such as a spouse, parent or adult children is not the best way to meet the marginality requirement.
While hiring family members is not prohibited, it is advisable to also hire U.S. employees who are not related to you, as this makes for a stronger argument that the E-2 company is able to generate sufficient income to support more than the treaty investor and his or her family.
Important Takeaways & Considerations
If working with your family is part of the plan for your E-2 company, it is important to discuss this with your immigration attorney. It is relatively common for family members to work for the E-2 company, especially E-2 spouses, but you want to make sure that your plan also includes hiring U.S. workers that are not part of your family.
This will become particularly important at the E-2 renewal stage. If you try to renew your E-2 and the only people working for the E-2 company are family members, this could lead to concerns about marginality. The best way to mitigate any concerns about family members working for the E-2 company is to hire at least as many U.S. workers as family members, so you can clearly show that the E-2 company is generating sufficient income to support multiple employees beyond the E-2 investor’s family.
Scott Legal has extensive experience with the E-2 visa process and we have worked with many investors who have hired family members. If you are interested in an E-2 visa and need support and guidance on your options and next steps, schedule a consultation with our attorneys today.
