Can a foreign company with treaty country nationality and only a branch office in the U.S. (without an LLC or corporation) receive an E-2 employee?
At times, a foreign company will choose to conduct business in the United States by simply setting up a “branch” office, without creating an LLC, corporation, or other formal legal entity in the U.S. As an example, in the State of New York, a foreign company can receive “authority to do business in the state” pursuant to New York Corporations Law section 1304. A company based in the foreign country can then set up an office in New York City and simply request from the state permission to do business in New York, without actually setting up a corporation or LLC in the U.S.
If such a foreign company is owned by nationals of an E-2 treaty country, can an employee with the same nationality receive an E-2 visa to work as an employee of the company within the U.S. branch office?
E-2 employee visas can be used for work at a branch office
In short, yes. E-2 employee visas are available to treaty country nationals who will come to the U.S. to work for a branch office of a foreign company that has the same treaty country nationality. (For more information on the E-2 visa ownership requirement, see our earlier post here). Continuing with the example above, a UK national can apply for an E-2 employee visa to work for the UK company that only has a branch office in New York City.
Representing the “branch office” corporate structure in the application
Certain consulates might be less familiar with the “branch office” corporate structure. As a result, it would be wise to clearly explain the E-2 company’s corporate structure in the E-2 application. Including graphic representation of where the branch office fits within the corporate structure could also be helpful.
Also, it is important to remember that even though it is not necessarily an LLC or corporation, a branch office that has authority to conduct business within a U.S. state is a legal entity in the U.S. The branch office can sue and be sued, receive a federal employer identification number (EIN), and pay taxes, for example. A strong E-2 employee application would include documentation showing that the branch office is, in fact, recognized as a legal entity by the U.S. government. Such documentation could include, for example, tax returns filed by the office in the U.S., or documentation showing that the company is authorized to legally conduct business in a specific U.S. state.
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