E-2 Terms and Conditions – Limitations, Subsidiary Employment
Treaty investors and their employees who are approved for E-2 nonimmigrant status are subject to certain terms and conditions in order to enter and stay in the United Sates. If these terms and conditions are violated, the investor or employee may be forced to leave the country.
The core requirements for being in the United States based on an E-2 visa are set forth in the Code of Federal Regulations – 8 CFR 214.2(e)(8)
Limitations on employment
A service officer will determine the terms and conditions the treaty investor, employee, or family member must follow – at either the time of admission or the time the request to change a different nonimmigrant status to E status is approved. A service officer means:
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement
A treaty investor or treaty employee “may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status.”
In addition to performing work for the “parent treaty organization or enterprise,” an employee may also do work for a subsidiary of those entities. Doing work for a subsidiary of either a “common” parent organization or a “common” parent enterprise – should not be considered as constituting a “substantive change” to the terms and conditions of the original E treaty – provided – “if, at the time the E-2 treaty status was determined, the applicant presented evidence establishing:
The organization or enterprise, or any subsidiaries of the organization or enterprise where the work is to be done
The required parent-subsidiary relationship and
That the subsidiary independently qualifies as a treaty organization or enterprise
If the worker is an employee of a treaty investor – then the work must still require executive or supervisory authority or special qualifications. The work to be performed must be “consistent with the terms and conditions of the activity forming the basis of the classification.”
Non-substantive changes to E-2 nonimmigrant status
If there is no substantive (or fundamental) change to the terms or conditions of the foreign persons’ employment which would affect his/eligibility for E classification – then there is no requirement to file a new Form I-129. “Prior approval is not required if corporate changes occur which do not affect the previously approved employment relationship, or are otherwise non-substantive.”
The alien must, however, to facilitate admission do one of the following:
“Present a letter from the treaty-qualifying company through which the alien attained E classification explaining the nature of the change”
“Request a new Form I-797, Approval Notice, reflecting the non-substantive change by filing Form I-129, with fee, and a complete description of the change”
“Apply directly to Department of State for a new E visa reflecting the change.
Foreigners who don’t establish their credentials for subsidiary employment may also be able to demonstrate “to the satisfaction of the immigration officer at the port-of-entry in some other manner, his or her admissibility under section 101(a)(15)(E) of the Act.“
Contact an experienced immigrant lawyer to review whether you or an employee can continue working in the US if you/the employee works for a subsidiary.
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