General Qualifications of the Employee of a Treaty Investor Company
In order to qualify as an E-2 employee of a treaty investor, you must have the following qualifications:
- Be of the same nationality of the principal alien employer who must in turn have the nationality of the treaty country.
- Qualify as an “employee” under the relevant law in the U.S.
- Have a position as an executive or supervisor. This means that the employee has control over the organization’s overall operation or at least a major component of it.
- If you are employed in a lesser capacity, you must have special qualifications that will be determined by USCIS. These “special qualifications” are described as services that are essential to the operation of the enterprise. This includes, but is not limited to:
- Proven expertise in the operations of the enterprise
- The unique nature of the specific skill
- The salary which is awarded to people with this specific skill. This may change over time, meaning that a unique and qualifying skill now may not be in the future.
- Whether or not the skills employed by the employee are readily available in the US
- Keep in mind that knowledge of a foreign language or culture is not, in itself, sufficient.
- If the employer is not an individual and is instead an enterprise or organization, the enterprise must be owned by people in the US who are of the nationality of the treaty country in the amount of at least 50%
- The owners of the enterprise must maintain valid nonimmigrant investor status and, if they are not in the US, they must receive the proper visa to seek admission into the US.
Terms and Conditions of E-2 Status
An E-2 treaty investor or employee may only work in the capacity he or she was approved to do at the time the visa was granted. E-2 employees may also work for the treaty enterprise’s parent company or subsidiary if:
- The relationship between the enterprise and the parent or subsidiary is established.
- The subsidiary employment requires qualifying skills or a qualifying role of employment.
- The terms and conditions of the employment have not changed other than the direct employer.
If the underlying facts or terms of the E-2 status change, USCIS must approve the changes if they are substantive in nature. This means that the employer’s basic characteristics change and includes but is not limited to a merger, acquisition, or event that changes the relationship between the employer and the employee. In order to notify USCIS of such a change, a new application with filing fee must be submitted. At the time of this new submission, the employee or employer may also request an extension of the visa.
If the change is not “substantive” in nature, a new application is not necessary.
If a strike or other labor dispute takes place and it leads to a work stoppage, Canadian or Mexican treaty investor’s employees may not be able to obtain E-2 status.
Dependents of E-2 Employees or Investors
The spouse and children under the age of 21 who are unmarried are eligible to receive derivative E-2 visas regardless of their nationality and can accompany the principle to the United States. In order to work in the U.S., dependents must file an Application for Employment Authorization. If the dependent child is under the age of 21, they cannot apply for a work visa. If you or your employer has any question regarding E-2 visa processing, please contact our experienced Los Angeles immigration attorneys at JCS Immigration and Visa Services. [LINK TO CONTACT JCS]