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What to know about the E-2 employee visa

By April 27, 2023E-2 Visa
A business professional smiling while holding a stack of papers

The E-2 employee visa can be an excellent option for an E-2 business that wants to hire foreign nationals that share the same nationality as the principal owner of the E-2 business. The E-2 employee must be coming to the U.S. to work for the E-2 business as a manager, executive, or specialized employee. In this blog post, we will discuss what the E-2 employee visa is, who can apply for it, and how to prepare a strong application.

Background: The E-2 employee must share the nationality of the E-2 business

When an E-2 investor’s visa is approved, their E-2 business is given the nationality of the E-2 investor. For example, if a German national owns 100% of the E-2 business, that business has German nationality. If a German national shares 50/50 ownership with an Italian national, the E-2 business has both German and Italian nationality. Check out our earlier blog post on the nationality requirement here.

Nationals of the business’s country (or countries) of nationality can apply for an E-2 employee visa. This would allow them to come to the United States to work for the E-2 company. For example, an E-2 company that is owned 50% by a German national and 50% by an Italian national can hire eligible foreign nationals from either Germany or Italy, who can then come to the US to work for the E-2 business.

What are the benefits of an E-2 employee visa?

The E-2 employee visa enables foreign nationals to work for the E-2 company in the United States. The process of applying for an E-2 employee visa is typically quicker and more straightforward than the L-visa and other work visa options.

The E-2 employee visa can be issued for up to five years, depending on the reciprocity agreement that the United States has with the home country of which the company and employee are nationals. The visa validity period can also be affected by when the E-2 investor’s visa expires or when the company’s E-2 visa registration expires.

The E-2 employee visa can be renewed indefinitely, as long as the E-2 company and its E-2 investor owners remain eligible.

Also, an E-2 employee can bring their spouse and children to the U.S. on derivative E-2 visas. Spouses of E-2 employees automatically receive work authorization as soon as they enter the U.S., and children of E-2 employees can attend school.

What are the requirements to qualify for an E-2 employee visa?

In order to qualify for an E-2 employee visa, the employee must hold a valid passport from the same country of nationality as the E-2 business. Like the E-2 investor, the E-2 employee must intend to depart the United States at the end of their visa.

The E-2 visa does not require that the E-2 employee or the E-2 investor have any specific educational background, though it is usually important to show that the applicant has some relevant experience in the field, even if that experience was gained outside of a school setting.

The E-2 employee visa is reserved for managers, executives, supervisors, specialized employees, or essential employees. It is helpful to break these into two groups, since the requirements for each are slightly different.

Requirements for managers, executives, and supervisors

An E-2 employee applicant aiming to be classified as a manager, executive, or supervisor must show that they will be primarily performing executive or supervisory tasks at the company. They must also have a high degree of responsibility within the business, and they must have control over either the entire company or over key functions of the company.

Applicants would show this by submitting in their application organizational charts showing the company’s structure, a job description that details the duties the applicant will perform, a resume showing that the applicant has the required expertise, and a letter from the E-2 company that describes the business, the job, and the employee’s qualifications. The applicant should demonstrate that they have experience managing a business or a department.

The government will also look at the employee’s job title and salary, so both should reflect the level of responsibility held by the employee and indicate that the role is actually managerial or executive in nature.

Requirements for specialized and essential employees

An individual applying for E-2 employee classification as an essential or specialized employee must show that they have specialized or unique knowledge or skills that are essential to the success of the E-2 business. For example, a Japanese national who is a renowned sushi chef could apply for an E-2 specialized employee visa to work at a Japanese E-2 business that operates a sushi restaurant in the United States.

In most cases, showing that the individual has specialized or unique knowledge or skills that are essential to the E-2 business would require that they show that they have at least some experience in the particular industry. Put differently, if no education or experience are required to gain the skills, then the government is likely to conclude that the skills are not unique or specialized. Also, there is no requirement that the essential E-2 employee applicant have previously worked at the company, unless the skills they will bring to the E-2 company are based on a familiarity with the overseas operations.

The government will also consider the salary that will be paid to the specialized worker, the amount of experience or training that is required to gain the expertise, whether U.S. workers would be likely to have the required skills or expertise, and how long the business will require the skill or expertise for.

Continuing with our sushi chef example, the government may expect to see that the sushi chef will train US workers as sushi chefs, thus eventually eliminating the need for the business to employ an E-2 employee as a sushi chef. It is usually much easier to secure an E-2 employee visa for a specialized or essential worker for the short term rather than the long term. Therefore, to strengthen the E-2 employee application, the business can show that it requires specialized skills for only a temporary period – for example, as part of its startup activities or for the training and supervision of other employees who will ultimately perform the specialized tasks themselves.

E-2 businesses that want to employ the E-2 specialized or essential worker for the long term can face significant hurdles, since the applicant would need to show the government that their skills are specialized or essential in the long-term. This would require the E-2 company and the applicant to prove that the skills will be needed continuously and are so specialized that a U.S. worker could not be trained to take over the position.

There are situations in which the government might decide that the long-term employment of an E-2 specialized or essential worker is appropriate. For example, an E-2 company may be able to show that the specialized or essential employee is needed on a long-term basis if they are involved in the creation of a specialized product or can provide skills or expertise that are not readily available in the U.S.

What must the E-2 investor keep in mind if they plan to employ E-2 employees?

While there is no minimum salary that the E-2 employee must be paid, salary is one of the factors the government officer will consider when deciding whether to approve the E-2 employee visa. The E-2 investor should compensate the E-2 employee in accordance with the role that they will have in the United States. For example, if the E-2 company wants to employ a chief executive officer as an E-2 employee, but only offers a salary of $40,000 for the role, the officer could have doubts whether the person will really be working as a CEO, which usually commands a much higher salary.

Also, if the E-2 investor is living in the United States, they must maintain valid E-2 status – as soon as they do not, the company becomes ineligible to support E-2 employees. Please note that this only applies if there is an E-2 investor, and if the E-2 investor is physically within the United States. As described here, it is possible for an E-2 business to have E-2 employees without the investors and owners of the business being inside the U.S.

Also, as described here, the E-2 employee visa might be a good alternative to a second E-2 investor visa, where there is more than one owner of the E-2 business.

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