Seguritan US Immigration Articles

E-1 or E-2 Visa for Foreign Employees

A person can obtain an E-1 or an E-2 visa without necessarily being a treaty investor or a treaty trader.  He can obtain an E-1 or E2 employee visa instead. A noncitizen employee of a treaty trader may obtain an E-1 visa and a noncitizen employee of a treaty investor may obtain an E-2 visa, if said employee is coming to the US to perform duties that are executive or supervisory in character, or, if he has special qualifications that are essential to the efficient operation of the enterprise.

There are a few things to be considered before applying for said visa. First and foremost is that as an employee of a treaty trader or treaty investor, you must have the same nationality as your employer. Since this is also a treaty-based visa, it is important that your employer comes from a country that has a standing treaty or bilateral relations with the United States to be able to engage in economic and commercial relations. It is important that you determine what the nationality of your employer’s business is. A business that is at least 50% owned by treaty nationals is eligible to become E-1 or E-2 visa recipient and the employees are, too.

The Philippines is one of the many countries that have commercial and navigational relations with the US. In fact, the Philippines has one of the longest treaty relations that started back in Sept. 6, 1955.

It is important also to consider what your role is to your company. In order for one to be eligible for an E-1 or E-2 employee visa, one should be an essential, managerial or executive employee of the company.

To be considered as an essential employee, you must be a specialist and not merely an ordinary skilled worker. You do not need to have an executive or supervisory function if your E-1 or E-2 employee visa application is based on being an essential employee. One must bear in mind that the United States Citizenship and Immigration Services (USCIS) looks into how your skills actually contribute to the successful operations of the company. They look into your expertise in the area or your length of training or experience as well as your salary. They also consider the availability of American workers in your field of expertise to consider your essentiality in the business. In one case, E-2 employee visa applicants who were nationals of Great Britain and employed by IAD Modern Design, Ltd. which at that time, had a contract with General Motors (GM), were considered essential to the company since it was proven that there was not enough American automotive design engineers who can do what they do best— redesign GM line of cars into smaller, Europe-style vehicles.

Your duty or position may also have an executive or supervisory character and USCIS looks not just into the title of the position vis-à-vis the business’ organizational structure but it also looks into your degree of control and responsibility in the operations of the company, the number and skills of the employees you will supervise, your salary level as well as your qualifying experience. Your executive and supervisory function must be your principal and not merely an incidental function.

Getting an E-1 or an E-2 employee visa can entitle one to work and live in the US and bring their family here as well. The good thing is that the spouse or children of the employee need not have the same nationality as the treaty trader or treaty investor employing the principal applicant. The E-1 or E-2 employee visa is issued for up to five (5) years and it can be renewed indefinitely in five-year increments.

While holding said visa, the E-1 or E-2 employee can obtain public education access for their children and access to universities without the need to apply for a student visa; obtain a social security number and of course, open bank accounts and get a driver’s license.

Eligibility Requirements for E-2 Visa

Foreign nationals seeking to come to the U.S. to invest in a business enterprise may obtain an E-2 visa.

The applicant must be a national of a country with a treaty of friendship, commerce or navigation with the U.S. and must demonstrate that he/she will develop and direct the investment enterprise.

The E-2 investor may be admitted for an initial period of two years and may be granted extension in increments of not more than two years. The spouse and minor children may join as dependents. The spouse but not the children may obtain employment authorization. The children may attend school.

There is no fixed dollar amount of investment required but the applicant must be able to show that it is substantial. It must not be an investment solely for the purpose of earning a living for the investor and his/her family.

Investments as defined by the regulations must pertain to funds or assets placed at the disposal of the business with the objective of making a profit and subject to a risk of loss incident to the business operations.

The E-2 applicant must be able to show that he/she possesses and controls the capital funds invested or being invested. The source of the funds need not be outside the U.S. as long as these were received through legitimate means. It can be received through a legacy, gift, savings, or inheritance from a U.S. source. However, while the capital funds can be inherited, an already operating business could not be inherited to be a considered a valid investment under E-2.

The substantial capital funds required must meet the proportionality test. This means that the amount of capital is substantial in relationship to the cost of purchasing or creating the business. It must be of such amount to support the likelihood that the investor will successfully develop and direct the enterprise.

The funds must be irrevocably committed to the business or enterprise and subject to the risks of conducting business in the U.S. whether it would result in profit or loss, either partial or total. The debt cannot be secured by the assets of the business itself but may be secured by the personal assets of the alien investor to be considered as qualifying investments.

Since the capital funds required are substantial, there may be issues on how to meet sufficient investment requirements to qualify for an E-2 treaty investor visa.

The original owner of the funds may be a U.S. citizen or green card holder and may give or lend money to a person or corporation holding treaty nationality so that this person or entity can qualify as an E2 investor. The E-2 investor then may also be eligible to bring in E-2 employees.

Two individuals wanting to invest in the same business but individually do not have enough funds to meet the substantiality requirement may also pool together their funds in that same business with one being the principal investor while the other just a donor or lender of the funds. Once qualified for E-2 visa, the principal E-2 investor may bring in the other as an E-2 employee.

Several investors may also pool together their funds and invest in a holding corporation for the purpose of investing and conducting business in the U.S. The holding corporation which should have treaty nationality shall act as the principal investor to be eligible for E-2 classification. Once qualified as E-2 investor, it can then petition some or all of the shareholders as E-2 employees.

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