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Do I qualify for an E-2 employee visa? Do I qualify for E-2 essential/specialized employee visa?

By October 21, 2019May 13th, 2021E-2 Visa, Immigration, Investor Visas
Image courtesy of Nguyen Hung Vu on Flickr (labeled for reuse)

The E-2 Investor visa is available for nationals of certain treaty countries who want to live in the U.S. to develop and direct the operations of a business. E-2 investors can either buy an existing business or start their own business. Once the E-2 Investor gets the E-2 visa or the U.S. company is registered as an E-2 company, the investor may bring certain types of employees from overseas to work for the U.S. business.

Can my spouse and my children come to the U.S. if I get E-2 employee visa? Can my spouse work in the U.S.?

Your spouse and children under 21 can apply for the E-2 visa and come to the U.S. Your spouse may apply for work authorization and after her/his work authorization application is approved, he/she may start working. You children may not work in the U.S. but they can study in the U.S.

Do I have to have the same nationality as the E-2 Investor or is it fine if I have the nationality of any treaty country?

You must have the same nationality as the E-2 Investor. For example, if the E-2 investor is from Italy, you have to have Italian nationality to qualify for the E-2 employee visa.

What categories of E-2 employees can come to the U.S. and work for the E-2 Company?

Not all employees can apply for an E-2 employee visa. You can come to the U.S. and work for the E-2 business if you will work as a manager/executive or if you will be an essential/specialized employee who has specific qualifications to the efficient operations of the business. This blog post will only focus on the essential/specialized employee category.

What are the requirements for essential/specialized employee?

In order to qualify as E-2 essential/specialized employee, the kind of service that is going to be rendered must be essential to the efficient operation of the company. This means, that the company has to show the need for the specialized skills of the employee. In addition, you must possess specialized skills and you have the burden of proof to show that these skills are specialized. Your skills do not need to be “one of a kind” but rather the skills must be indispensable to the success of the business.

The government will consider the following factors in assessing whether your skills are specialized:

  • What is the experience and training necessary to achieve such skills? How long would it take another employee to achieve these skills?
  • Are the skills you possess unique?
  • Are there U.S. workers available with such skills?
  • What will be your salary?
  • Do you have expertise in the area of specialization? For how long have you been working in this area?
  • What is the function of your job?

Will the E-2 business need your skills long-term or short-term?

In addition, as part of the E-2 employee visa application, you must prove the length of time your essential/specialized skills will be needed. In some cases, the skills may be essential as long as the business is running and operating. In other cases, the skills of essential employee will be needed for a short time and after some period of time the Company will be able to train U.S. workers the specialized skills.

In some cases, the E-2 business can show that it will need the essential skills of the employee on an on-going basis (e.g. if you will be engaged in a continuous development of product improvement, quality control, or you will be providing services to the company and no U.S. workers could perform these services). On the contrary, the company will likely only need the essential skills employee for a short term if the employee will start up a business or new activities of the business or if the employee will train or supervise the personnel in the U.S.

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