What are the application requirements for the E2 visa for employees?

It’s not uncommon for E-2 investors to want to be accompanied to the USA by a key employee, to support with the development of the US business. However, the E2 visa is only open to certain employees who meet the visa requirements.

The following guide for treaty investors looks at the rules relating to E2 visas for non-US nationals coming to work for a US enterprise. Commonly referred to as an E2 employee visa, we examine the requirements and cost, what this allows, the application process, how long it lasts, and whether or not an E2 visa can be extended to enable an employee to stay on.

 

What is the E2 employee visa?

An E2 employee visa is a classification that allows the national of a treaty country to work for an E2 treaty investor business, including UK nationals. This could be an existing or new US business, in which someone of the same nationality, known as the treaty investor, has invested a substantial amount of capital. Provided the eligibility requirements under the E2 route are met by the treaty investor, certain employees of that investor may also be eligible.

To qualify for E2 classification, the treaty investor, either a real or corporate person, must:

• Be a national of a country that has a treaty of commerce and navigation with the US — a list of treaty countries can be found on the US Department of State website;

• have already made an investment of, or be in an active process of investing, a ‘substantial’ amount into a genuine US enterprise. There are no fixed thresholds, where an investment will be regarded as sufficient if it’s likely to ensure the successful operation and development of the business in question, measured by its proportion to the total cost of that business;

• show that they own at least 50% of the US enterprise, and that they’re developing and directing that business, or have the ability to do so, demonstrated through either their controlling interest or managerial control;

• invest in a business that’s more than marginal — the business must have the ability to make a significant economic contribution to the US economy, usually requiring proof of jobs, even though creation of a prescribed number of jobs isn’t explicitly required for E2 classification.

 

What does an E2 employee visa allow?

The E2 employee visa will allow the visa-holder to be admitted to the US to work for the treaty investor business in the capacity for which they’ve submitted their application, so in either an executive or supervisory role, or any other role essential to operations in the US. Under an E2 employee visa, an employee must only work for the treaty investor business, meaning they cannot usually work for any other US employer without seeking further permission.

Under this route, the spouse or dependent children of an E2 employee visa-holder can accompany them. Once in the US with E2 status, an E2 employee’s spouse may apply for employment authorisation which will allow them to work legally in the US for any employer, and the children of E2 employees can attend school. An E2 employee visa-holder, together with their family, also have permission to travel in and out of the US without restriction, provided their visa remains valid and entry into the US is on the basis of E2-related activity.

 

E2 employee visa requirements

To be eligible to apply for an E2 employee visa, the treaty investor business must be registered with the E-Visa Unit. This means that all of the eligibility requirements for that business must first be met, including detailed documentary evidence that this is a real and active commercial undertaking into which the main treaty investor has, or is in the process of making, a substantial investment.

The E2 employee must also satisfy the following criteria:

• they must share the same nationality as the treaty investor or investor business;
• they must be destined to work in an executive or supervisory position, or possess skills that are considered essential to the operations in the US;
• they must intend to leave the US when their E2 status expires.

 

Job role requirements for an E2 employee

To be eligible for an E2 employee visa, the applicant must:

• be destined to work in an executive or supervisory position, or
• possess skills that are essential to the operations in the US.

 

Executive or supervisory employees

In determining whether an employee will be undertaking an executive or supervisory role in the US enterprise, various factors will need to be taken into account. These include the title, duties and pay of the position in question, its place in the organisational structure, the degree to which the applicant will have control and responsibility for overall operations, who the applicant will supervise, and whether the applicant possesses any relevant experience.

The executive or supervisory aspect of the role must be the principal and primary function, and not incidental. For example, if the position largely involves routine work and secondarily entails supervision of low-level employees, the position will not be classed as executive or supervisory for the purposes of an E2 employee visa.<

 

Employees essential to operations

In determining whether an employee possesses skills essential to US operations, various factors will need to be taken into account. These include the experience and training necessary to achieve such skills, the uniqueness of these skills, the availability of US workers with the same skills, the salary such special expertise can command, the degree of the applicant’s proven expertise, and the function of the job that the applicant will be doing.

In some cases, ordinarily skilled workers may qualify as essential employees, such as workers needed for start-up or training purposes. These employees derive their essentiality from their specialised knowledge and familiarity with the overseas operations. However, apart from an ordinarily skilled worker relying on this specialised knowledge of a business, there’s no strict requirement that an essential employee have any previous employment with the enterprise.

 

How to apply for an E2 employee visa

To be granted an E2 employee visa, the treaty investor business must be successfully registered with the E-Visa Unit, using Form DS-160 and submitting a number of very detailed documents in support. The applicant must also submit Form DS-156E.

If the applicant is applying to work as an employee for a previously qualified E2 enterprise, they’ll need to submit both Forms DS-160 and DS-156E.

E2 employee visa applicants will then be required to attend an interview with all the supporting documents required for employees, including:

• a copy confirmation page of the application form DS-160
• a copy appointment confirmation page, if relevant
• a completed Form DS-156E
• the employee’s passport or other travel documents valid for at least 6 months beyond the holder’s stay in the US, although the 6-month requirement doesn’t apply to UK passports
• a colour passport photo taken within the last 6 months, unless a photo of the employee was uploaded at the same time as the DS-160 application  
• evidence of residence in the UK, if the applicant is a UK citizen
• evidence of the applicant’s status in the UK, if not a UK or EU passport holder
• evidence of any previously issued US visas — if the employee is no longer in possession of any passport(s) containing US visas, they must advise the consular officer at interview
• a detailed job description letter, including a description of the treaty investor business, their role in that business and qualifications for that role, plus their salary and benefits
• an organisational chart reflecting their executive, managerial or essential role in the treaty investor business, with clearly delineating lines of authority
• an up-to-date and detailed curriculum vitae or resume
• a copy of educational certificates, diplomas and professional qualifications
• a copy of the approval letter for the registered treaty investor business
• a signed and dated statement of intent to depart the US upon expiry of their E2 visa
• a copy of a name change by deed poll, if their name has been changed
• an ACRO or police certificate if the employee has ever been arrested, cautioned or convicted
• a letter from their physician discussing their current state of health if the employee has a medical condition which could potentially impact their eligibility for the E2 visa
• any documents relating to being denied entry into or deported from the US, where relevant. 

This list of documents, despite being lengthy, is not exhaustive, where additional documents may be required depending on the employee’s circumstances. For example, documentation may be needed to address the specialised nature of the employee’s skillset, or if the E2 treaty investor business has already been registered, proof may be required to show that the enterprise is operational, such as copies of the latest available US tax return etc.

Of note, the list of documents required to register the treaty investor business prior to the employee interview is even lengthier, including documentary proof of ownership, investment, marginality and the original source of funds. This means that expert advice from an immigration specialist is crucial to optimise any application for an E2 treaty investor visa and/or an E2 employee visa, not least because a substantial upfront investment is required to support a visa application, with absolutely no guarantee of success.

 

How long does an E2 employee visa last?

The maximum length for which an E2 employee visa can be issued is 5 years, although the initial grant will usually be for around 2 to 3 years. This is because most of the applications received are for relatively small businesses which are potentially volatile and often don’t succeed. However, in the case of larger business with a high turnover and employing a number of US citizens, the visa may be issued for the maximum 5-year period.

 

Can you extend an E2 employee visa?

No restrictions apply to the number of extensions that can be granted under the E2 route, provided the treaty investor business continues to meet the relevant requirements, and the employee can demonstrate their continued intent to return to the UK following completion of work in the US. E2 employee visa applicants should apply to extend their visa prior to expiry of their current grant of leave to maintain continuity of E2 status.

This visa doesn’t, however, provide the visa-holder with a path to settlement. This means that an E2 employee cannot apply for permanent residency in the US with E2 classification, but rather would need to change to a different route to be eligible for a green card.

 

How much does it cost to apply for an E2 employee visa?

To apply for an E2 employee visa, the applicant must pay a fee of $205. This is non-refundable, regardless of whether or not an application results in the issuance of a visa. This means that if the application for an E2 employee visa is denied, an additional fee must be paid to apply again. A fee of $105 will also need to be paid on the day of the employee’s consulate interview when applying for an E2 employee visa from the UK.

 

Do you have a question about an E2 employee visa?

To optimize your prospects of making a successful E2 visa application, expert guidance should be sought to ensure the petition, documentation, business plan and E2 cover letter are comprehensive and effective in aligning to the requirements of the visa category.

As specialist US immigration attorneys, we can guide you through the complexities of the E2 visa application process. For advice on E2 employee visa applications, contact us.

 

E2 employee visa FAQs

What is E2 employee visa?

An E2 employee visa is a classification of visa that allows the national of a treaty country to work for an E2 treaty investor business, ie; one in which the treaty investor has invested a substantial amount of capital

 

How long is a E2 visa good for?

The maximum length for which an E2 employee visa can be issued is for a period of up to 5 years, although this can be extended on an indefinite basis, provided the relevant requirements continue to be met.

 

Can E2 visa holder work in USA?

An E2 visa holder can work in the USA, either to direct their US business as a treaty investor or in the capacity for which they applied as an E2 employee, but they cannot usually work for another company.

 

Is E2 visa a green card?

The E2 visa is what’s classed as a nonimmigrant visa. This means that it’s a temporary visa, and although it can be renewed an unlimited number of times, E2 visa-holders cannot apply for a green card directly from this route.

 

This article does not constitute direct legal advice and is for informational purposes only.