The E-2 visa – in the form of the E-2 investor visa – is frequently an excellent option for those who want to start or purchase a business in the United States. The E-2 employee visa can also be an excellent option for a business that is registered as an E-2 business to employ workers who share the E-2 company’s nationality. As is detailed in this earlier post, it is not necessary for a business to be associated with an E-2 investor who has already been granted an E-2 visa. In other words, it is possible for a business to be eligible to support E-2 employees without the investor or owner of the business being in the U.S. or having an E-2 investor visa. To learn more about the E-2 employee visa and its requirements, see here; for the E-2 investor requirements, please see here.
E-2 Employees and E-2 Business Registration
An E-2 business that supports workers on E-2 visas would oftentimes be required to register with a specific consulate. As we discuss in an earlier post here, it is even possible for the business to register with more than one consulate, particularly if the business has dual nationality and will be supporting workers from two E-2 treaty countries. E-2 business registration does not occur at all U.S. consulates, but it is commonplace at consulates that see a large number of E-2 visa applications, such as the U.S. consulate in London.
Why do consulates register E-2 companies?
In April 2022, the U.S. Department of State updated its Foreign Affairs Manual (or FAM), which serves as the primary manual for consular officers, to reflect new guidance for consulates that do have registration programs, or that plan to initiate one.
The new FAM guidance, which can be found at 9 FAM 402.9-7(D) (“E-Visa Company Registration Programs/Databases”), makes it clear that consulates that use an E-2 registration database can help the consulate more efficiently adjudicate applicants from the same company, as long as the company has not experienced a substantive change (we discuss substantive change in a prior post here). Registration also helps the consulate to track trends, and to maintain institutional memory when an E-2 company applies to renew a visa or its E-2 registration status.
What information is a consulate encouraged to maintain when it registers an E-2 company?
Each consulate is permitted to create its own processes and procedures for registering E-2 companies. In fact, some consulates have not adopted an E-2 company registration program at all. However, the new FAM guidance lists several areas of information that consulates should collect for registered E-2 companies.
Among other things, consulates that have E-2 registration programs or that develop them should maintain, among other things, information such as: the company name, visa control number, any E-2 applicant’s present position and nationality, the most recent adjudication date and adjudication decision.
The consulate is also encouraged to collect ongoing information on the registered E-2 company in order to ensure that the E-2 company remains in good standing. Pursuant to the new FAM guidance, in order to be in good standing, a company that is registered or that is seeking E-2 registration must:
- Have applicants in the U.S. that are in E status (though the guidance notes that there is no minimum number of applicants that must be in E status in order for a company to be accepted into a registration program);
- Inform the consular post of applicants that have been issued E visas and who subsequently change or adjust status out of the E visa category, as well as change into E status domestically; and
- Have its status reviewed every 5 years, at a minimum, to ensure that the employees are in the appropriate status and that the enterprise in the United States is more than marginal.
What else does the new FAM guidance say about E-2 registration databases and how consular officers use them?
The guidance also encourages consular officers to not view a company’s presence in the database as conclusive as to whether its employees should or should not be issued visas – in other words, the officer should consider the strengths and weaknesses of each applicant that submits an application, regardless of whether they are already in the database.
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