After reading the E2 visa overview for the employees of treaty investors and gaining a general idea of what an E2 visa petition is, the next step is to learn about what the employees of E2 visa treaty investors would need to provide as evidence to prove that they are qualified under an E2 visa.
The article below provides a brief overview of what the E2 visa requirements are looking for and what documents are usually submitted for each requirement.
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Table of Contents
In an E2 visa petition for employees of a treaty investor, it must be shown that (1) the employee must have the nationality or citizenship of a country that has a qualified treaty with the United States (or the foreign country is approved under U.S. legislation) which should also be the same treaty country as the E2 visa employer (treaty investor), (2) the employee must be an executive or supervisor OR have special qualifications that make them essential in successfully operating the business in the United States, and (3) their employer must qualify under the principal E2 visa (as a treaty investor).
The following sections consist of a brief summary on each requirement and the documents that are generally used as evidence to satisfy that requirement.
The employee is a national or citizen of a country that has a qualified E2 visa treaty with the United States (or the country is approved under U.S. legislation)
The E2 visa requires the employee to prove that they have a nationality or citizenship of a country that has a qualified E2 visa treaty with the United States (or that the country is approved under U.S. legislation).
Documents to Prepare (Nationality or Citizenship of Treaty Country)
Evidence that shows nationality or citizenship of qualified treaty country can include but are not limited to:
- Passport is issued by a qualified treaty country (it should include biographical pages, related visa pages and stamps that show U.S. admission)
- Arrival-Departure Record (Form I-94)
For employees of an E2 visa treaty investor, the employee must have the same nationality as the principal employer
The E2 visa petition requires the employee to prove that they have the same nationality as the principal employer (treaty investor). The employer under the E2 visa petition can be either a person or a business entity.
E2 Visa Treaty Investor Employer is a Natural Person
When the E2 visa employee is employed by a single person who is a business investor (treaty investor) already in the United States maintaining a valid E2 visa status (or otherwise can be qualifiable for an E2 visa status if the business owner is outside the United States), the principal E2 visa treaty investor as the employer must show:
＊For more details on the requirements listed above for the foreign business investor employer, please read the E2 visa requirements and documents article of the principal E2 visa treaty investor.
Alternatively, the E2 visa employee can be employed by an enterprise or organization that has a qualified nationality instead. Please see below for organizations as treaty investors.
For employees of an enterprise or organization, the employee must have the same nationality as the E2 visa enterprise or organization (which is based on the nationality of its ownership)
When the business investor (employer) under the E2 visa is an organization or enterprise (i.e., business entity), the nationality of the organization or enterprise is traced back to the nationality of its individual owners (persons). The organization or enterprise that is acting as a business investor must be at least 50% owned by persons who have a valid E2 visa status (or who are qualifiable for an E2 visa status if they are outside the United States) and the organization or enterprise will be given the nationality of the business owner’s treaty country.
In scenarios where two owners from different treaty countries have equal shares in a partnership or a 50/50 joint venture, the nationality of the organization or enterprise can be either owner’s treaty country. The nationality of publicly traded companies is usually presumed to be of the country where the stock is physically listed and the stock exchange that it is exclusively sold and traded on.
Documents to Prepare (Same E2 Visa Treaty Country)
Evidence that shows the E2 visa enterprise or organization has a nationality of a qualified treaty country under an E2 visa can include but are not limited to:
- Capitalization table of the treaty enterprise, or detailed list of the owners (it should include their citizenship or nationality, type of ownership, ownership percentages)
- Most recent annual report (it should include all subsidiaries, affiliates, branch office, ownership percentage based on owner’s nationality or citizenship)
- Most recent Securities and Exchange Commission Form 10-k (it should show the subsidiaries and ownership percentage of the treaty enterprise)
- Most recent meeting minutes of the treaty enterprise (it should list the equity holders, and the type, amount, and percentage they own)
- Equity certificates of the treaty enterprise (it should show the name of each equity holder and the type owned)
- Equity ledger of treaty enterprise (it should show all certificated and uncertificated equity issued, total amount, type of equity, all equity holder names)
- [Corporations] Bylaws, articles of incorporation, certificates of designation of the treaty enterprise, and all amendments of treaty enterprise (it should include type and amount of stock authorized to be issued, receipt date stamped by state official)
- [LLC] Operating agreement, articles of organization, and all amendments, attachments, addendums, additional statements, exhibits of treaty enterprise (it should include member names, type and percentage of membership interests, receipt date stamped by state official)
- [Partnerships] Partnership agreement, registration documents, and all amendments, attachments, additional statements, exhibits of treaty enterprise (it should include partner names, type and percentage of partnership interests, extent of partner’s liabilities, receipt date stamped by state official)
- [Sole Proprietorships] Sole proprietorship registration documents of treaty enterprise (it should identify the person operating the sole proprietorship, the person’s nationality or citizenship, receipt date stamped by state official)
- [Franchise] Franchise agreement of treaty enterprise, and all amendments, attachments, additional statements, exhibits (it should show the nationality or citizenship of treaty investor)
- Documents that show the treaty enterprise has been authorized to operate as a branch office in the state
Alternatively, the E2 visa employee can be employed by a single person who is a business investor under the E2 visa with the same treaty country nationality or citizenship. Please see above for natural person treaty investors.
The employee must have been or will be principally and primarily performing as an executive or supervisor in the treaty enterprise
One E2 visa petition criterion requires the employee to prove that they have been or will be principally and primarily performing as an executive or supervisor in the treaty enterprise. The executive and supervisor under the E2 visa should have the ultimate control and responsibility of the overall operation or major component of the treaty enterprise.
Factors to determine an executive or supervisory position include whether:
- The proposed executive position gives the employee authority to decide the direction and the policies for the treaty enterprise
- The proposed supervisory position gives the employee supervisory responsibilities for a significant proportion of the overall operations and it generally does not include the direct supervision of low-level employees
- The employee has:
- Executive and supervisory experience and skills
- Position title and salary appropriate for an executive or supervisory position
- Signs that the position has the appropriate authority and responsibility in the overall organizational hierarchy
- Responsibilities such as discretionary decision-making, policy setting, managing and directing operations, supervising other professional and supervisory personnel
- The position requires some routine work that is usually done by staff employees can only be incidental
Documents to Prepare (Employee is an Executive or Supervisor)
Evidence that shows the employee is an executive or supervisor under the E2 visa can include but are not limited to:
- Detailed description of the employee’s duties in the treaty enterprise should show:
- How the employee will direct the overall or a major component of the organization
- The employee’s direct subordinates (it should include their names, job title, description of position)
- How the employee will establish the goals and policies of the treaty organization or component
- How the employee will use discretion in making decisions
- Organizational chart or diagram (it should include the entity’s structure, staffing levels, identification of the person’s job position)
- List of all subordinates in employee’s immediate division, department, or team by name, job title, education level, salary, and summary of duties
- State Quarterly Wage Report (it should include all the name, salary, and number of weeks worked all employed)
- Documents that show the employee and the employee’s proposed subordinates:
- Payroll summary
- Wage and tax statement (Form W-2)
- Transmittal of wage and tax statements (Form W-3)
- Miscellaneous income statement (Form. 1099-MISC)
- Employment agreements for newly hired workers that will be managed by the E2 visa employee
- Certificates, diplomas, transcripts
- Letters from employers stating the job titles, job duties, required level of education and knowledge for the positions
Alternatively, the E2 visa employee can have special skills or aptitudes that are essential to efficiently or successfully operate the treaty enterprise instead of being in an executive or supervisor position. Please see below for E2 visa employees that have special skills or aptitudes.
The employee must have skills or aptitudes (special qualifications) that are essential to efficiently or successfully operate the treaty enterprise
One E2 visa petition criterion requires the employee to prove that they have skills or aptitudes (special qualifications) that are essential to efficiently or successfully operate the treaty enterprise. The special qualifications employee of the treaty investor under the E2 visa must (1) have the specialized skills needed by the business, and (2) the specialized skills must be essential to successfully or efficiently operate the business in the United States.
Generally, the employee would need to have unique knowledge or work experience related to the business operations to qualify as an employee with special qualifications under the E2 visa. For example, an employee who is familiar with and has specific knowledge on how their E2 visa employer’s business is run overseas because they have been working for the employer for a long period of time would usually be able to qualify as an employee with special qualifications under the E2 visa.
Mere knowledge of the culture or skills in a foreign language usually does not qualify as having special qualifications under the E2 visa. Individual U.S. consulates or embassies may impose additional requirements for employees with special qualifications under the E2 visa.
Factors in Determining Special Qualifications Job Position
The duration of the employee’s assignment in the United States and whether there are U.S. workers that have those specialized skills will also be factors in determining if the employee can be qualified under the E2 visa and how long they will be able to stay on an E2 visa status. For example, certain skills may only be needed for a short period of time (one or two years) such as skills that are needed to start a business might no longer be needed after the business starts its actual operations or skills that might only be needed for the initial training of locally hired U.S. workers. In contrast, there may be certain skills that will be needed for a longer period of time such as functions related to the continuous development of product improvement, or qualify control, or service that is not generally available in the United States yet.
Additional Requirements
The treaty investor may be required to have a training program that will ultimately replace the E2 visa employee with special qualifications who is coming to the United States to train local U.S. workers or they may be required to set a time frame for when the foreign employees will be replaced by locally hired U.S. workers.
Documents to Prepare (Employee has Special Qualifications)
Evidence that shows the employee under the E2 visa has skills or aptitudes that are essential to efficiently or successfully operate the business can include but are not limited to:
- Detailed description of the employee’s duties in the treaty enterprise should include:
- Description of specific job duties that will be performed and the percentage of time spent on each duty.
- List the specific skills or aptitudes that are essential to efficiently or successfully operate the treaty enterprise.
- Explain how the skills or aptitudes of the employee will be used in the duties that are essential to efficiently or successfully operate the treaty enterprise.
- Documents that show the employee’s degree of knowledge and expertise in their part in the operation (it should also be compared to the abilities of other people doing similar work).
- Documents that show the length of the employee’s experience or training with the treaty enterprise.
- Documents that show the period of training or other experience that is required to effectively perform the proposed job duties, how the knowledge or skill is related to the specific process or applications of the treaty enterprise, the salary that the special qualifications can receive. Foreign language and culture alone do not meet the special qualifications standard.
- Documents from state employment services, chamber of commerce, labor organizations, or trade sources that show the skills and qualifications of the employee is not readily available in the United States.
- Employment agreements for newly hired workers that will be managed by the E2 employee.
- The total number of employees that are employed as essential skills personnel and are in similar positions to the employee’s proposed position (it should include an explanation on why the employee’s skills or aptitude are essential even with those people being employed).
- Documents that show how long the employee will be needed to perform the duties of the proposed essential skills position in the United States (it should specify if the treaty enterprise is a start-up, if the employee will be training locally hired employees, the projected date to complete the operation’s start-up, the projected date for when locally hired employees will replace the essential skilled workers, a projected plan and the reasons of the expected length of time to train the replacements).
- Certificates, diplomas, transcripts.
- Letters from employers stating the job titles, job duties, required level of education and knowledge for the positions, relevant parts of the operator’s manuals.
Alternatively, the E2 visa employee can be in an executive or supervisor position instead of having special skills or aptitudes that are essential to efficiently or successfully operate the treaty enterprise. Please see above for E2 visa executive or supervisor positions.
The overall emphasis on the documents and requirements/criteria of an E2 visa petition is that the job duties must show the employee and employer have the same treaty country nationality and that the employee has the appropriate job duties and qualifications to perform as a supervisor or executive, or staff who has specialized skills that is needed to successfully or efficiently run the U.S. business. The employee under the E2 visa is specifically coming to the United States to assist the E2 visa treaty investor and is typically not allowed to change to a different employer unlike most temporary work visas.
The requirements for an E2 visa petition are extensive and while ticking the boxes of requirements sounds simple enough, figuring out what items should be included and strategizing how the petition is presented is not. It is common practice and strongly encouraged to obtain an attorney for employment-based nonimmigrant visa petitions.
For people who do not qualify for the E2 work visa petition, the closest alternatives would be filing for an L1A visa or an L1B visa petition which is for employees who are either a manager or executive or a person who has specialized knowledge of a multinational company, or an E1 visa which is for employees of treaty traders who has a U.S. business involved in international trade, or an H1b visa petition (Australians can file for E-3 visa petitions), or a TN visa petition (for Canadian or Mexicans) to work in the United States.
Another possible alternative to filing an E2 visa petition for an employee of a treaty investor would be to file for a green card petition which is a permanent immigrant visa and not a temporary work visa like the E2 visa. Typically, an employee who is qualifiable for an E2 visa would file for an EB1c green card (for executives or managers of multinational companies), an EB2 green card (for persons who have at least a master’s degree or a bachelor’s degree and 5 years of post-college progressive work experience), or an EB3 green card (for persons who has at least a bachelor’s degree). For more on green cards gained through work, please read the overview for employment-based green cards.
If you have an E2 work visa (Treaty Investor Employee) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify whether the E2 visa is the appropriate nonimmigrant visa category for the client’s (or the client’s beneficiary’s) professional background and if there are other visa options for the client (or the client’s beneficiary). We will work closely with our client to prepare a convincing case for their (or it’s) E2 visa petition and we will also strategize on how the E2 visa petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an E2 work visa petition due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
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- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued
RELATED ARTICLES
- E2 Visa (Employee of Treaty Investor)
- E1 Visa & E2 Visa Checklist (Employee of Treaty Trader / Investor)
- E Visa Overview (Treaty Trader & Investor)
- E1 Visa (Treaty Trader)
- E1 Visa Checklist (Treaty Trader)
- E2 Visa (Treaty Investor)
- E2 Visa Requirement & Documents (Treaty Investor)
- E2 Visa Checklist (Treaty Investor)
- E1 Visa (Employee of Treaty Trader)
- E1 Visa Requirement & Documents (Employee of Treaty Trader)
- L Visa Overview (Intra-Company Transferee)
- L1A Visa (Manager / Executive Transferee)
- L1B Visa (Specialized Knowledge Transferee)
- H Visa Overview (Specialty Occupations)
- Employment-Based Green Card Overview
- EB1c Visa (Multinational Manager or Executive)
- EB5 Visa (Investor)
- H1B Visa (Specialty Occupations)
- E3 Visa (Australian Specialty Workers)
- TN Visa (Canadian & Mexican Professionals)
- P visa Overview (Athlete & Entertainer)
- O Visa Overview (Extraordinary Ability / Achievement)