Resource Articles
01 January 2008
E-2 Treaty Investor Visas – Another Alternative to the H-1B Visa
When H-1B visa numbers for non-U.S. Master’s degree holders were exhausted on the very first day of filing this year, employers scrambled to come up with alternative ways to hire foreign professional workers. These alternatives included TN, L-1B and O-1 visas, but largely overlooked the E-2 Treaty Investor Visa category.
The E-2 Treaty Investor Visa allows a plethora of foreign national workers, including executives, supervisors and other essential skills employees, to travel freely to the U.S. to engage in employment to “develop and direct” a related U.S. entity. Importantly, the workers may or may not already be employed by the investing entity abroad. The U.S. entity must be an enterprise that is supported by sufficient and unencumbered funds and assets provided by the foreign corporation. The limitation, however, is that both the investor (whether individual or corporation) and employee must have the same nationality as the treaty country.
The inclusion of employees with essential skills can permit otherwise qualified H-1B applicants to benefit from the E-2 visa. In determining whether an employee possesses “essential skills,” the employee must have “special qualifications that make the alien’s services essential to the efficient operation of the enterprise.” 8 C.F.R. 214.2(e)(3). There is not a specific test to determine whether an employee possesses essential skills. 9 FAM 41.51 N.14.3. Instead, the adjudicator will consider a number of factors including: the employee’s degree or demonstrated expertise in a field; the uniqueness of the specific skills; the function of the job to which the alien is destined; and the salary such special expertise can command.
The utility of the adjudicator’s analysis is that the essential skills employee can demonstrate his or her essential skills through prior employment with the investor abroad and/or through skills s/he acquired elsewhere. In other words, the E-2 visa can be used much like an L-1B Intracompany Transferee or it can be used as an H-1B (if the employer and employee otherwise qualify).
In the example above, the E-2 Treaty Investor Visa would allow Company Y to hire Mr. Z and employ him much like an H-1B. Unlike the H-1B, however, with an E-2 visa there are no minimum degree requirements, prevailing wage issues, or quotas.
Admittedly, E-2 Treaty Investor qualifying companies with the essential skills employee’s nationality are not necessarily easy to come by, nor do the companies typically advertise their qualifying status. However, in a time where demand for skilled employees exceeds available workers, the E-2 Treaty Investor Visa remains a tool that all good immigration attorneys should have in their belts.
Footnote: 1 This article does not discuss the intricacies in applying and registering for E-2 status. To summarize, for E-2 visa employee applicants outside of the U.S., the entire application process is under the jurisdiction of the appointed Embassy or Consulate in that Treaty Country. Each Embassy/Consulate has a different procedure for E-2 adjudications. Some Embassies/Consulates require that the investing entity or person register as a Treaty Investor. Once registered, an expedited process is used for each additional employee applying for an E-2 visa. One can also change status to that of an E-2 if already residing in the U.S.
Company X in the U.K. (the investor) has significantly invested in its U.S. subsidiary, Company Y. Company X has qualified for and registered with the U.S. Embassy London as a Treaty Investor.1 In May 2007, a British citizen, Mr. Z, applies for a position with Company Y. Mr. Z has a bachelor’s degree in Computer Science and 15 years of work experience. There are no available H-1B visas through which to hire Mr. Z. However, Company Y could apply for an E-2 visa for Mr. Z. They would argue that Mr. Z’s skills are essential to the efficient operation of the enterprise. He would have acquired those skills through his degree and 15 years of work experience.
Specifically, in order to qualify for an E-2 Treaty Investor visa, the following must be demonstrated: (1) Requisite treaty exists between U.S. and other state (for a list of countries with whom a treaty exists, please see: http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3726.html); (2) Treaty Investor (either individual or business) possesses the nationality of the treaty country; (3) Treaty Investor has invested or is actively in the process of investing in U.S. enterprise; (4) Enterprise is a real and operating commercial enterprise; (5) Treaty Investor’s investment is substantial; (6) Investment is more than a marginal one solely for earning a living (this is interpreted to mean that the investment should create jobs for individuals other than the investor); (7) Applicant is in a position to develop and direct the enterprise; (8) If the applicant is an employee, s/he will hold an executive/supervisory position or possess essential skills to the company’s U.S. operations; and (9) Applicant intends to depart the U.S. when E-2 status terminates.
