Employees of qualified treaty investors can apply for an E-2 visa if they can show they are needed due to either:
- The executive and supervisory character of their work, or
- They have special qualifications
These employee skills are legal terms of art that are set forth in the Code of Federal Regulations – 8 CFR § 214.2 Sections 17 and 18
Executive and supervisory character
The US government wants to make sure that employees aren’t being brought over to replace American workers. The employees should be people who have unique abilities to manage the job – to benefit American workers who are on the job, the success of the project, and the success of the business in helping American communities.
The core requirements for showing that the employee seeking the E-2 visa will be working in an executive or supervisory character are that the employee should have “ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.”
A service officer will determine if the employee qualifies as an executive or supervisor. A service officer generally means “U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and/or U.S. Immigration and Customs Enforcement.” The service officer will make his/her decision based on the following criteria:
- The executive has “great authority to determine the policy of, and the direction for, the enterprise”
- A supervisory position “provides the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees”
- The following additional criteria will be reviewed:
- “Whether the applicant possesses executive and supervisory skills and experience”
- “A salary and position title commensurate with executive or supervisory employment”
- “Recognition or indicia of the position as one of authority and responsibility in the overall organizational structure”
- “Responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory personnel”
- “If the position requires some routine work usually performed by a staff employee, such functions may only be of an incidental nature”
Special qualifications
The service officer will examine whether the employee who isn’t an executive or supervisor has the special skills and abilities that are “essential to the successful or efficient operation of the treaty enterprise.”
The service officer will examine the following criteria in determining whether special qualifications apply:
- “The degree of proven expertise of the alien in the area of operations involved”
- Whether other workers have the same set of skills and abilities
- Whether American workers have the same skills and qualifications
- How long the applicant has worked in the field and what training he/she has
- What training and experience is required to do the job
- “The relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command”
Applicants should understand that just knowing a foreign language or culture is not enough to meet the special qualifications test.
The service officer, in assessing the special qualifications of an employee may consider the whole picture
- “A skill that is essential at one point in time may become commonplace at a later date”
- “Skills that are needed to start up an enterprise may no longer be essential after initial operations are complete and running smoothly”
- “Some skills are essential only in the short-term for the training of locally hired employees
The service officer will also examine the length of time the skills are needed. In some cases, the worker may be needed long-term. In other cases, the employee may only be needed for certain tasks – when those tasks are completed, the worker will be expected to leave the United States. “The service officer will likely seek evidence of the time needed for completion of the project or the time to replace the worker.”
A few representative cases
Two cases illustrate the fine line between being approved and not being approved – as an employee with “responsible authority.”
- “Matter of Udagawa , 14 I&N Dec. 578 (BIA 1974). Applicant for admission who will supervise and train American workers as tempura cooks at a Japanese restaurant and assist in the preparation of meals during the training period is inadmissible as an employee of a treaty investor because he will not be employed in a “responsible capacity” with the meaning of 22 CFR 41.51.”
- “Matter of Nago , 16 I&N Dec. 446 (BIA 1978). Where the applicant for admission is a highly trained chef who is engaged in a specialized form of Japanese cooking (Nabemono) and has been brought to the U.S. to impart his knowledge, the BIA concluded that the applicant is employed by a treaty investor in a responsible capacity and therefore qualifies as an E-2 nonimmigrant.”
Contact an experienced immigration lawyer to review whether you or an employee meets the executive, supervisory, or special qualifications test.
