THE E2 EMPLOYEE VISA: WHAT YOU SHOULD KNOW
You may already know that the E2 Visa is an amazing option for individual investors. However, many people do not know that they can be great visas for employees as well. In this post, I provide general information about the benefits of an E2 Visa. I also discuss the requirements and the process for obtaining E2 Visas for employees.
The Benefits Of Obtaining An E2 Employee Visa
There are a number of reasons why an E2 Visa for your employee may be a better fit than other non immigrant work visas such as the H1b Visa or the L1 Visa. One unique perk of the E2 Visa is that it can be extended/renewed indefinitely as long as your employee and your company continue to meet the requirements. Another advantage of the E2 Visa is that there is no annual cap on the number of visas that can be issued. Also, the E2 Visa is advantageous due to the fact that spouses of E2 Visa holders can obtain work authorization. Finally, unlike with the L1 Visa, there is no required period of employment abroad before the employee can qualify for the E2 Visa.
Although there are a number of benefits of the E2 Visa for an employee, there are some drawbacks. The main disadvantage of the E2 Visa is that there is no direct path to a green card. Indeed, E2 Visa applicants cannot have immigrant intent when they enter the US. In order to obtain an E2 Visa, applicants must satisfy the adjudicator of their intent to depart the US at the end of their status(fortunately, proving this is not usually difficult).
Requirements for the E2 Investor(Company or Individual)
Before you can bring employees to the US on an E2 Visa, you or your company must qualify for the E2 Visa classification. Below, you will find a brief overview of the requirements:
The Investor or Company has to be a National of an E2 Visa Country
Proving that an individual investor has the requisite nationality is a pretty straightforward. Basically, you just have to go to the department of state website, pull up the E2 Visa Country list and look for your country. If your country is listed, you are good. If your country is not listed you will have to look for different options that could enable you to run your business in the US.
For companies, the process is slightly more complex. To determine the nationality of a company, you look to the ownership structure. If your company is owned at least fifty percent by nationals of an E2 Visa country, then your entity meets the nationality requirement of the E2 Visa. This sounds easy, but in practice, tracing the nationality of a company that has multiple owners can be burdensome.
The Company or the Individual Investor Must Show That They Will Develop and Direct the Bona Fide Commercial Enterprise
A company or an individual investor who seeks to send an employee to the US on an E2 Visa must demonstrate that they(the company or investor) will develop and direct the enterprise in the US. In some cases, an individual must show the intent to develop and control. In other circumstances, the company must show such intent.
When does an individual have to show that they will direct and develop the enterprise?
If the employee plans on applying for E2 classification as an individual employee of the investor or the E2 company, then the individual owner must show that they will personally develop and direct the enterprise.
When does the company have to show the intent to develop and direct the enterprise?
In the case of a business that is owned by a foreign parent company(at least 50%) then the parent company(and not the individual owner) has to show that they will develop and direct the enterprise.
The E2 Company or Individual Investor Must Show That They Have Made a Qualifying Investment in the US.
In addition to proving nationality and the intent and ability to direct and develop the enterprise, the individual investor or the company must show that they have made a qualifying investment in a commercial enterprise in the US.
Qualifications of the Investment
In order to qualify, the applicant must have invested(or be in the process of investing) lawfully obtained money in a “real and operating commercial enterprise.” The investment must be “at risk” and qualify as “substantial” under the regulations. Additionally, the E2 Visa applicant’s investment must be more than a “marginal” investment that is intended to provide a living solely for the applicant and their family
Please understand that the preceding paragraph contains an overly simplified explanation of the investment requirement for an E2 Visa. The qualifying investment issue is extremely nuanced and requires analysis from an immigration lawyer before pursuing the application.
Requirements of the E2 Employee
If you decide that the investment qualifies for E2 Visa purposes, then you can determine if your employee(who must share the nationality of the investor or company) qualifies as an E2 employee. There are two categories of employees that can qualify. The categories include 1) Executives or Supervisors and 2) Employees that perform essential duties.
Executives and Supervisors
If your employee’s duties involve managerial responsibility and authority, then they could qualify as an executive/supervisor. In deciding if the E2 Visa is appropriate for your executive/supervisor employee, the adjudicator will consider the applicant’s job duties and their position within the organizational hierarchy of the company. The adjudicator will also look to see if your supervisor/executive employee has control over the US operations or over an essential function of the operations. Finally, they will want to know how many employees your E2 employee will be directing and the skill level of their subordinates.
Employees That Perform Essential Duties
Usually it is fairly difficult to prove that your employee is essential. But if your employee does not qualify as an executive or supervisor, then this is the path that you have to pursue.
In order to prove your employee’s indispensability, you should be prepared to present evidence of their specialized skills. Also, you will need to articulate why the skills are essential to the effectiveness of your enterprise. In deciding if your employee is essential, the adjudicator will consider the following factors:
The employee’s proven expertise in the relevant field;
The uniqueness of the employee’s skill set;
The level of training and experience that was required for the employee to develop their essential skills;
The salary that your employee’s expertise commands;
The existence of the essential skills that are held by those who are in the US workforce;
The anticipated duration for which your employee’s essential skills will be required
General E2 Visa Process at the Consulate
If you decide that you(or your company) and your employee meet the qualifications for the E2 Visa, you will then submit evidence to the consulate and attend an interview. Different consulates have different requirements, so it is wise to look at the requirements before the process begins to get a sense of what hurdles you will have to clear.
Once E2 status has been granted, your employee will usually apply at the same consulate that granted the status initially. If your employee’s interviewer at the consulate is convinced that your employee is in fact essential, they will be able to enter the US to help your business grow and thrive!
The E2 Visa can be a fantastic option to bring your world class employees to the US! If you are considering the E2 Visa for yourself or an employee, please educate yourself about the process. Then, consult with an immigration lawyer who can guide you and take a lot(not all) of the stress out of the process.