US E-2 Investor Visa: Foreign Employees

As a rule, an applicant who is not the principal investor must be employed in an executive or supervisory position or have highly specialized skills that are essential to running the trading enterprise. Ordinary skilled or unskilled workers do not qualify. 

1The investor must run the business personally to bring foreign employees over on an E-2 visa

If the majority owner of the E-2 company wants to enter the United States as an investor or send an employee to the United States, the owner must show that they personally develop and direct the business. If a foreign company owns at least 50 percent of a US company and wants its employee to come to the US as an employee of the parent company or of the US subsidiary, the foreign parent must show that it develops and directs the US business. 

Where ownership in a treaty country is too widely spread for any single person or company to show the ability to develop and direct the US business, the owners holding treaty country nationality must: 

1. show that together they own 50 percent of the US business, and 
2. show that, at least jointly, they are able to develop and direct the US business. 

In these cases, no owner can obtain an E-2 visa as an "investor". Instead, every E-2 visa recipient must show that they are an employee of the US company coming to the US to perform the duties of an executive, a supervisor or an essential employee. 

2General requirements for employees

To bring an employee to the United States, the prospective US employer must maintain E-2 status, and several criteria must be met: 

1. The prospective employer must meet the nationality requirement: an individual must hold the nationality of the treaty country, and a company or other business organization must be at least 50 percent owned by nationals of the treaty country. Note that a lawful permanent resident is not eligible to bring in employees under the E-2 visa program. In addition, shares in a corporation or other business organization held by lawful permanent residents cannot be counted toward majority ownership by treaty country nationals when qualifying the business to bring in foreign employees on the E-2 visa: 

2. The employer and the employee must have the same nationality; and
3. If the employer does not reside abroad, it must maintain E-2 visa status in the United States.

3Executives and supervisors

When assessing whether an employee counts as an executive or supervisor, the following factors are considered: 

1. The title of the position the applicant will fill, its place in the company's organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the overall operation of the business or a major part of it, the number and skill level of the employees the applicant will supervise, the level of pay, and whether the applicant has relevant executive or supervisory experience; 

2. Whether the executive or supervisory element of the position is its principal, primary function rather than an incidental or supplementary one. For example, if the position mainly calls for management skills or involves key supervision of a large part of an organization's operations, with only occasional routine work, an E-2 visa for executive staff would generally be appropriate. Conversely, if the position mainly involves routine work and only secondarily the supervision of low-level staff, it cannot be called executive or supervisory; and 

3. The weight given to any particular factor, which can vary from case to case. For example, a title such as "Vice President" or "Manager" can help in assessing the supervisory nature of a position if the applicant is joining a large company with many employees. If the applicant is joining a small office with two employees, however, such a title would mean little on its own. 

4Essential or specially qualified employees

The law also provides that employees with special qualifications that make their services essential to the efficient operation of the business can qualify for an E-2 visa. In other words, the employee must have special skills, and the business must need those skills. The burden of proving that the applicant has special qualifications essential to the efficient operation of the US business lies with the company and the applicant. 

When applying for the E-2 visa, the applicant must show not only that their skills are needed but also for how long. In general, the E-2 employee visa is meant for specialists, not ordinary skilled workers. There are exceptions, however. Some skills may be needed for as long as the business operates. Others may be needed for a shorter period, for example when a business is starting up. 

There is a wide range between the extremes listed below, but these examples give consular officers some perspective on the question: 

1. Long-term need: The employer can show an ongoing need for the skills if the E-2 employee works in roles such as continuous product improvement, quality control or providing a service not otherwise available. 

2. Short-term need: The employer may need the skills only for a relatively short period (say one or two years) if the employee's purpose is to start operations (of the business or of a new activity within it) or to train and supervise technicians working in production, maintenance and repair. 

Once the business has established the need for the special skills, the experience and training required to acquire them must be analyzed to identify what makes those skills special. How long the need lasts will vary between types of skills. Finally, the E-2 employee must prove they have these skills by documenting the required training and/or experience. 

When assessing the special skills and how essential they are, the following factors are considered: 

1. The E-2 employee's proven level of expertise in the field of specialization;
2. How unique the special skills are;
3. The function of the position the E-2 employee will fill; and
4. The salary that this particular expertise can command. 

How long the skills remain unique depends largely on how much training is needed to perform the planned duties and, in some cases, on the length of experience and training within the company. 

The availability of US workers is another factor in assessing how specialized the E-2 applicant is and how indispensable that specialist is to the successful operation of the business. This is not a labor certification test but a measure of how specialized the skills are and how much they are needed. For example, a television technician coming to the US to train US workers in a new television technology not widely available on the US market could qualify for an E-2 visa as an essential employee. 

If the question of essential skills cannot be settled from the initial documents, the consular officer may ask the employer for statements from chambers of commerce, labor organizations, industry associations or state employment offices showing that no US workers are available with the skills in question. 

The criteria above are used to judge whether the employee is essential to the efficient operation of the business indefinitely or for a shorter period. Some skills may turn out to be needed for as long as the business operates. Assessing a short-term need for an employee in the United States, for instance at a newly founded business, should pose few problems. Long-term employment is a different matter, because what is highly specialized and unique today may not be in a few years. Such changes are more likely in fast-moving industries such as computing. Even if this cannot be fully determined at the first E-2 application, the consular officer should keep it in mind for future E-2 renewal applications. In renewal applications, the foreign employee must show that their special skills are still needed and that they still have them. 

Essential employees have skills that set them apart from ordinarily qualified workers. If the foreign employee shows that they have special qualifications and are permanently essential to the efficient operation of the US business, there is no requirement to train US workers as replacements. 

In some cases, workers with ordinary qualifications can also count as essential employees, and this almost always applies to staff needed to set up a business or to train others. A new company, or an established one expanding into a new line of business in the United States, may need ordinarily skilled staff for a short period. These employees are essential because of their familiarity with the overseas company rather than because of their skills. The specialized knowledge lies in knowing the particulars of the employer's operation, not in skills the E-2 applicant has learned by rote. To avoid problems with later applications, consular officers may decide at the time of the original E-2 application that it is best to set a timeframe within which the company must replace these foreign workers with locally hired staff. 

An essential employee does not need to have worked for the company before. Previous employment only matters if the required skills can be acquired solely through that employment. When assessing whether someone is essential, the focus is on the company's need for the skills in question and on whether the foreign employee has them. Employers may need certain qualifications to run their business even if they do not currently employ anyone with those qualifications. 

You'll find more about the visa on our E-2 investor visa overview page, including the requirements for the US company and the visa for spouses and children.

In short

• Employees who do not invest themselves can get an E-2 if they work in an executive or supervisory role or have skills essential to the business; ordinary skilled workers do not qualify.
• Employer and employee must share the same nationality, and at least 50 percent of the company must be owned by nationals of the treaty country.
• Whether a position is executive depends on the duties, the role within the company, the number of staff and the salary, not on the job title alone.
• For specialists, what counts is expertise, uniqueness, function, salary and the availability of US workers; you also have to show how long the skills will be needed.

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