Immigration lawyers are commonly asked if there is a path to a Green Card for an E2 Visa employee. Fortunately, it is possible to help an amazing employee obtain a green card.
However, it is important to understand that the routes to a green card will vary depending on the position of the E2 Visa employee.
For most E2 Visa “essential employees”, the route from E2 Visa to Green Card status is fairly complex and tedious.
Compared to the process for essential employees, E2 Visa managers and executives oftentimes enjoy a smoother transition.
Who is an E2 Visa Essential Employee?
An essential employee is someone who has “special qualifications that make the alien’s services essential to the efficient operation of the enterprise.” 8 CFR 214.(e)(3). These “special qualifications” are defined as “…skills…that an employee…brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise.”8 CFR 214(e)(18).
Basically, the employee’s skills and expertise have to be unique and super valuable to the employer. For example, if you can show that the E2 Visa employee developed proprietary software that forms the foundation of your company’s competitive advantage, then the employee is essential. Likewise, if their expertise is necessary to satisfy your contractual obligations, they should qualify.
The Green Card Process for E2 Visa Essential Employees
Many E2 Visa essential employees will fall under the employment based second preference category. Others will fall under the employment based third preference green card category. For these categories, a labor certification application will usually be required before the green card can be obtained.
PERM Labor Certification
The PERM labor certification process involves testing the labor market to ensure that there are no qualified US workers who are willing and able to do the job. During this process, you will be required to obtain a prevailing wage determination from the Department of Labor(response time is usually 3-5 months). Once you obtain the wage determination, you will complete specific recruitment steps. If your labor condition application is ultimately approved, then you can file a green card petition for your employee.
Once the I-140 is approved, the employee can apply for adjustment of status(once their category is current) or apply for an immigrant visa through the consulate.
The Green Card Process for Managers and Executives
Thankfully, for an E2 Visa employee who is a manager or executive, the transition to a US green card is oftentimes smoother. This is due to the fact that many of these employees can qualify for an Eb1c Green Card. Qualifying for the Eb1c Green Card allows the employer to forego the dreaded PERM labor certification process.
To Qualify under the Eb1c green card category, you must show that:
- There is a qualifying corporate relationship between the foreign company and the US company
- The US company has been doing business for at least one year
- The employee worked outside of the US with the foreign company(as an executive or manager)for one continuous year(within the last three years) on a full time basis
- The E2 Visa employee has been offered a full time position by the US company to work as an executive or manager
- The US company has the ability to pay the offered wage
Who is a Manager or Executive?
There are three different types of positions that can qualify for the Eb1c green card. They include managers, functional managers and executives. All of these positions are defined and evaluated differently by USCIS.
The typical manager is someone who:
- Manages other supervisors, professionals or managerial employees(Note: “first-line supervisors” do not qualify unless they are managing other professionals)
- Has the authority to make personnel decisions(ie. hiring and firing)
- Exercises discretion over daily activities
A functional manager is someone who:
- Manages the organization or one of their departments, divisions or essential functions
- Works at a senior level within the organizational hierarchy
- Exercises discretion over the relevant daily activities
An executive is someone who:
- Directs the management of the organization or one of their essential functions
- Establishes goals and policies
- Has wide latitude in decision making
- Receives only general direction from higher level executives or the board of directors
If the job duties of an E2 Visa employee meet one of the definitions above, then you can consider the Eb1c green card as long as all of the other requirements are met.
Conclusion: The Green Card Path for an E2 Visa Employee
Fortunately, there are a number of paths for E2 employees who want to obtain a green card. In order to improve your odds of successful transition, I encourage you to plan far in advance(preferably before applying for the E2 Visa), learn about the process and seek the guidance of a knowledgeable business immigration lawyer.