E-2 Visa – Treaty Investor Employee

1. E-2 Visa Investor Employee.

To qualify for E-2 Visa status, individuals may invest in a U.S. business enterprise on their own behalf or on the behalf of their employer.

In order to qualify to bring an employee into the United States, a prospective employer must meet several criteria:

  • First, the employer must meet the nationality requirement. That is, if the employer is an individual, the individual must have the nationality of the treaty country. If the employer is a corporation or other business organization, at least 50% of the ownership must have the nationality of the treaty country.

NOTE: A permanent resident does not qualify to bring in employees under the E-Visa classification.

  • Second, the employer and the employee must have the same nationality; and
  • Third, the employer, if not a resident abroad, must be maintaining valid E-Visa status in the United States.


2. The “Fifty Percent Rule” and Nationality of E-2 Visa Business Entities.

The nationality of a business is determined by the nationality of the individual owners.

Under the 50% rule, at least 50% of the business must be owned by nationals of the treaty country.

For example, in the case of a Pakistani national, at least 50% of the business must be owned by citizens(s) of Pakistan.

In larger companies where there are many shareholders and owners, the company’s nationality is presumed to be where its stock is principally traded (e.g., the Toronto Stock Exchange).


3. To qualify as an E-2 Visa Employee, the Employee must:

  • Have the same nationality as the principal foreign employer; and
  • Is coming to the United States to engage in duties of an Executive or Supervisory Character; or
  • If employed in a non-executive or non-supervisory position, the employee has Special Qualifications that make his or her services essential to the efficient operation of the business enterprise.


4. E-2 Visa Employee in Executive or Supervisory Position.

The position must be principally and primarily executive or supervisory in nature.

The employee has ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.

In determining whether an individual has established possession of the requisite control and responsibility, the following three factors are considered:

  1. Whether the employee has authority to determine the policy of, and the direction for, the enterprise;
  2. Whether the employee has supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees, and;
  3. Whether the applicant possesses executive and supervisory skills and experience; a salary and position title; recognition or indicia; or responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory personnel.


5. E-2 Visa Employee with Special Qualifications.

Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the business enterprise.

In determining whether skills are essential to the operation of a business enterprise, the following factors are considered:

  • The degree of proven expertise in the area of operations involved;
  • Whether others possess the employee’s specific skill or aptitude;
  • The length of the employee’s experience and/or training with the business enterprise;
  • The period of training or other experience necessary to perform effectively the projected duties;
  • The relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command;
  • That knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement;
  • Whether the skills and qualifications are readily available in the United States;
  • That skills that are needed to start up an enterprise may no longer be essential after initial operations are complete and running smoothly; and
  • That some skills are essential only in the short-term for the training of locally hired employees.

An E-2 Investor employee may be able to establish his or her essentiality to the business enterprise for a longer period of time, such as, in connection with activities in the areas of product improvement, quality control, or the provision of a service not yet generally available in the United States.

In such a case, evidence must be provided of the period for which skills will be needed and a reasonable projected date for completion of start-up or replacement of the essential skilled workers.


6. E-2 Visa Employee Work with Corporate Subsidiary.

E-2 Visa employees may perform work for the parent business enterprise, or any subsidiary of the parent business enterprise.

Approval from the U.S. Citizenship and Immigration Services (CIS) will be necessary for the performance of work for a subsidiary unless evidence establishes:

  1. The requisite parent-subsidiary relationship and that the subsidiary independently qualifies for E-2 Visa classification;
  2. In the case of an E-2 Visa employee, the work to be performed requires executive, supervisory, or essential skills; and
  3. The work is consistent with the terms and conditions of the activity forming the basis of the classification.


7. Changes in Terms or Conditions of E-2 Visa Employer.

Approval from the U.S. Citizenship and Immigration Services (CIS) will be necessary where there is a substantive change in the terms or conditions of the employer’s basic characteristics such as merger, acquisition or sale. In such a case, a new application on Form I-129 and E supplement must be filed.

Alternatively, the E-2 Visa Investor must obtain from a consular officer a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry.

Prior approval is not required if there is no substantive, or fundamental, change in the terms or conditions of employment.

Furthermore, prior approval is not required if corporate changes occur which do not affect the previously approved employment relationship, or are otherwise non-substantive.

In cases where there has been a change in the employer’s business or in the terms of employment, to facilitate admission, the E-2 Investor should:

  • Present a letter from the company explaining the nature of the change;
  • Request a new Form I-797, Approval Notice, reflecting the non-substantive change by filing with the appropriate CIS Service Center Form I-129, with fee, and a complete description of the change; or
  • Apply directly to the U.S. Department of State for a new E visa reflecting the change.

To ascertain whether prior approval is necessary, an E-2 Visa Investor may file with the Service Center Form I-129, with fee, and a complete description of the change, to request appropriate advice.

If an application to change the terms and conditions of E-2 Visa status or employment is approved, CIS will notify the E-2 Visa Investor on Form I-797.

An E-2 Visa Investor may not change employment to another employer without prior authorization from CIS. To do so without authorization will render the treaty trader deportable.