Last Updated on May 8, 2024 by Anda Malescu
One of the most frequently asked questions among E2 investors and companies is can I get an E2 visa for employees? The answer is yes, you can get an E2 visa for your employees to bring them to the United States to work for your company.
However, it is important to know that only E2 businesses can apply for E2 visas for their foreign employees. This means that the E2 visa for employees is only available to US businesses that are owned by investors from E2 treaty countries.
E2 visas for employees are not available to US companies that are predominantly owned by US citizens, green card holders, or individuals from non-treaty countries
Another important aspect to consider is that the E2 visa is not available to all employees. The E2 employee visa is only available to those individuals who will be employed in the United States in an executive or supervisory capacity or who possess specialized skills essential to the company’s operations.
In this article we present a comprehensive overview of the E2 visa for employees, commonly known as E2 employee visa. We explore everything you need to know about E2 employee visa, including requirements, application process, costs and duration of stay.
What is an E2 employee visa?
An E2 employee visa allows an individual from a treaty country to work in the United States for an E2 employer, provided they have the same nationality as the E2 employer.
The E2 employer can be either:
- An investor who holds E2 status in the United States, or who would be classifiable as an E2 investor if they reside outside the US
- A US business that is owned at least 50 percent by individuals who hold E2 status in the United States, or who would be classifiable as E2 investors if they reside abroad
[CFR Section 214.2(e)(3)(i)-(ii)].
In other words, you can apply for an E2 employee visa if you are coming to work for an E2 investor or company, with which you share the same nationality. The E2 employer can be any existing or new US business in which an investor from your country has invested a substantial amount of capital, or it can be an individual investor from your treaty country.
Regardless of whether the E2 employer is an individual investor or a US company, the investor must meet the E2 visa requirements to bring employees to the United States on an E2 employee visa. To learn more about the requirements, visit E-2 visa and What are the E2 visa requirements?
E2 investors residing in the United States must maintain their E2 status to apply for E2 employee visas.
With an E2 employee visa you must work exclusively for the E2 employer and in the specified position stated in the application, which must be an executive, supervisory or essential role for to the US operations. You cannot work for any other US company without prior approval.
Can I bring my family with E2 employee visa?
Yes, you can bring your spouse and children under 21 to the United States on an E2 employee visa. To qualify for this visa, your spouse and children do not have to hold the same nationality as you.
Your spouse can work in the United States and does not need to obtain a separate work authorization. The spouse can also study in the US and attend schools and universities.
An E2 employee visa does not authorize your children to work in the United States, but it grants them permission to attend any schools.
E2 employee visa requirements
To qualify for an E2 employee visa both the employer and the employee must meet certain requirements.
E2 employer requirements
- Employer has the nationality of an E2 treaty country
- Employer has the same nationality is the employee
- Employer maintains E-2 status, if residing in the United States
Nationality of E2 treaty county
To apply for an E2 employee visa, the employing company must be an E2 business. This means that individuals from E2 treaty countries own at least 50 percent of the US company. In addition, these individuals must meet the eligibility requirements for an E2 investor visa, including the requisite investment, regardless of whether they have obtained an E2 visa.
The E2 employer cannot be a US citizen or permanent resident, and any ownership interest of a US citizen or permanent resident cannot be counted. If you are a US citizen or permanent resident and you want to hire foreign workers, visit How can a US company hire foreign employees?.
Essentially, if you, as an investor, meet the criteria for an E2 visa, even if you have not obtained one yet, your US business can sponsor an E2 employee to work in the United States. You can sponsor an E2 employee visa even if you live outside the United States and regardless of whether you intend to apply for an E2 investor visa in the future.
In practice, to establish an E2 business and apply for E2 employee visas, individuals from E2 treaty countries who meet the E2 investor visa requirements register their business with the E-visa unit at the US Consulate abroad. The E2 company registration procedures vary depending on the specific Consulate.
E2 employee requirements
- Your US employer is an E2 investor or E2 business
- You share the same nationality as the E2 investor or E2 business. This means you have a passport from the same country as the E2 investor or business.
- You are destined to work in an executive or supervisory position, or possess skills essential to the firm’s operations in the United States
- You intend to depart the US when the E2 status ends.
Job requirements for an E2 employee
To qualify for E2 employee visa, you must come to the United States to:
- Work in an executive, managerial, or supervisory position, or
- Possess skills essential to the company’s operations in the United States
Executive or Supervisory Employee
You can obtain an E2 employee visa if you will be working in executive or supervisory positions in the United States. Executive or supervisory duties involve broad managerial responsibility and authority over a large portion of a company’s operations.
To determine whether a position is executive or supervisory, immigration officers evaluate various factors including:
- Job title
- Job duties
- Job’s position in the organizational structure
- Employee’s degree of control and responsibility for overall operations or a major component
- Number of subordinate employees
- Skill level of subordinate employees
- Level of pay of the position
- Employee’s prior executive or supervisory experience
The executive or supervisory element of the position must be the principal and primary function and not incidental or collateral. If the position involves primarily routine work and secondarily entails supervision of low-level employees, then the position cannot be classified as executive or supervisory.
There is no bright line test to determine the weight of any individual factors. For example, if an employee is seeking an E2 employee visa to work for a company with many employees and large operations, then a job title of “vice president”, “president” or “manager” can be of use when assessing the supervisory nature of the job. However, if the same employee is coming to work for a small two-persons office, the job title has little significance in assessing the executive or supervisory nature of the position.
To increase your chances of getting your E2 employee visa approved, it is crucial to ensure your application effectively demonstrates your qualifications for a supervisory or executive position. For expert assistance in crafting a compelling application, contact our experienced E2 visa lawyer.
Essential Employee
If you are not going to work in an executive or supervisory capacity, then to obtain an E2 employee visa you must have special qualifications that make your services essential to the operation of the E2 business. This means that the employee must possess specialized skills that the E2 employer needs.
There is no bright-line test to determine if an employee is an essential employee. Instead, immigration officers review the facts of each case and exercise judgement in assessing whether an E2 employer has a need for a specific skillset and whether such skills are specialized.
The relevant factors used to determine whether skills are essential include:
- The level or duration of experience and training necessary to achieve such skills, including any prior training or experience with the E2 business
- The uniqueness of the specific skills
- The proven experience in the area of specialization and operations involved
- The function of the job and the E2 employer’s specific processes or applications
- The availability of US workers with such skills
- The salary such special expertise can command
- The duration of need for the essential skills
Generally, the E2 employee visa is intended for specialists not for ordinary skilled workers. However, in some cases, ordinarily skilled workers can qualify as essential employees, such as workers needed for start-up or training purposes. These employees derive their essentiality from familiarity with the overseas operations, and most importantly from the specialized knowledge they have acquired about the employer’s operations.
However, apart from an ordinarily skilled worker relying on this specialized knowledge of a business, there is no strict requirement that an essential employee have any previous employment with the enterprise.
How to apply for an E2 employee visa?
You can apply for an E2 employee visa directly at a US Consulate abroad, or if you are in the United States, you can apply by filing form I-129 with USCIS and requesting a change of status to E2. When you apply directly at a US Consulate, it is not necessary to file an I-129 petition with USCIS before the visa application.
To obtain an E2 employee visa, the E2 investor or business must be either successfully registered with the E-Visa Unit or be classifiable as an E2 investor or business. This means that the treaty investor must meet the E2 visa requirements for investors, including evidence that the treaty investor has invested or is in the process of investing a substantial amount of capital in a real, active and non-marginal commercial undertaking.
E2 employee visa document checklist
If you are applying for an E2 visa for employees, you need to submit both Forms DS-160 and DS-156E attend an E2 visa interview and present supporting documents with your E2 application.
Generally, the documents needed for E2 employee visa petitions are:
- Confirmation page of online Form DS-160
- Completed and signed form DS-156E
- Copy of appointment confirmation page, if applicable
- Signed Form G-28, if applicable
- MRV application fee receipt;
- Employee’s passport valid for at least 6 months beyond the visa application date
- A color passport photo taken within the last 6 months, if applicable
- Copies of any previously issued US visas, if applicable
- A job description letter, including a description of the E2 business, employee’s job title and duties, employee’s role in the business and qualifications for that role, plus their salary and benefits
- Organizational chart of the business
- Employee’s CV or resume
- Copy of educational certificates, diplomas and professional qualifications, if any
- E2 company registration letter, if applicable
- Employee’s signed and dated statement of intent to depart the US
- Police certificates if the employee has ever been arrested, charged or convicted
- Copy of employee’s name change, if applicable
How long does an E2 employee visa last?
The E2 employee visa can be issued for up to five years and varies depending on your treaty country. Treaties with certain countries may specify a shorter duration. However, whether or not to issue the E2 employee visa for the maximum length of time under the treaty is solely the judgment of the consular officer deciding the case.
Some consulates may initially issue shorter visas, with the option to extend them for the maximum duration upon renewal. This is the case in London, where the initial E2 visa is typically issued for three years, while the maximum duration under the treaty with the United Kingdom is five years.
Effect of substantive changes on E2 employee visa
A substantive change in the terms and conditions of the investor’s E2 status or eligibility may trigger USCIS or US Consulate to revoke the E2 employee’s visa or terminate their E2 status. In this case, the employee has a 60-day grace period to find a new E2 employer, apply for a new E2 visa as investor or another visa, change their status to a different visa category, such as a B1/B2 visitor visa, or depart the United States.
However, not all substantive changes result in termination of employee’s E2 visa. Even if there is no termination, USCIS must approve any substantive change through the approval of an amended E2 petition or by the US Consulate abroad.
Acquisitions, Sales and Mergers
If there is a sale or merger of the E2 business, or a sale of the division where the employee works, a new E2 petition or visa application must be filed with evidence of continued eligibility for E2 in the new capacity. The employee is not authorized to begin the new employment until the application is approved. Changing E2 employers without prior approval constitutes failure to maintain E2 employee status.
However, if after such sale or merger the employer is no longer eligible for E2 visa, then the employees’ E2 status terminates. The affected E2 employees have 60-day grace period to find a new employer, obtain a new visa, or depart the United States.
For example, if the E2 business undergoes a change of ownership, such as a sale, merger, or acquisition, and the new owner is not a national of the treaty country or is a US citizen or green card holder, then the E2 employee visa terminates. Similarly, if the investor becomes a US citizen, green card holder or loses their E2 treaty nationality, the employee’s E2 visa terminates and they have a 60-day grace period to find a new employer, obtain a new visa, or depart the United States.
Can you extend or renew an E2 employee visa?
Yes, you can extend or renew your E2 employee visa indefinitely, provided that the E2 business continues to meet the relevant requirements and you intend to depart the United States when your E2 status ends. However, this does not preclude you from applying to renew your E2 visa or obtain a green card.
How much does it cost to get an E2 employee visa?
To apply for E2 visa for employees you must pay $315 plus any reciprocity fee, if applicable.
If you apply for change of status to E2 within the United States, you must pay $810 for standard processing if you currently employ a total of 25 or fewer full-time employees, or you can pay an extra $2,805 for expedited 15-day processing.
Can my employee buy the E2 company?
Yes, your employee on E2 visa can buy the E2 company. However, this transaction needs careful planning as there are immigration implications for both parties.
Following the purchase, the ownership structure of the E2 company changes resulting in a substantive change. Both you, the current owner, and your employee must continue to maintain lawful immigration status.
If your employee buys the E2 company, then depending on the ownership structure they may qualify for E2 investor visa. To qualify, they must meet the E2 investor visa requirements including substantial investment in the company and ability to develop and direct the enterprise, among others.
You on the other hand will also need to reevaluate your immigration status if your employee buys the E2 company. You may need to obtain a new E2 visa or a different visa, change status, apply for a green card through self-sponsorship, employment, EB-5 investment or abilities or leave the United States.
Prior to selling the E2 company to your employee, you should contact our experienced USA E2 visa lawyer to help you navigate this process with ease. We can advise you and your employee on the best course of action based on the specific circumstances of the sale and your future plans.
Malescu Law can assist
If you are an E2 investor, business or employee and you need to obtain E2 visa for employees, contact our experienced E2 lawyers in Miami, Florida USA or schedule a consultation.
We serve foreign nationals throughout the United States across all 50 states, the District of Columbia and Puerto Rico.
Contact us or schedule a consultation.
Malescu Law P.A. – Business & Immigration Lawyers
