E2 Visa Strategy – Employees

By Isaul Verdin, Esq.

A frequently asked question by E2 Visa Entrepreneurs is:
How many employees are allowed under the E2 Visa program? And, what types of employees are allowed?

Many times foreign entrepreneurs hesitate to launch operations in the U.S. because they do not want to leave their key employee team behind.  Foreign entrepreneurs have the option to use the E2 visa strategy to transfer their top business executives, supervisors and essential employees.

How Many Employees Are Allowed in an E2 Visa Business?

Each E2 visa circumstance will be unique. The total number of employees allowed depends on the project business.

It will be helpful to think of the business organization as a pyramid or hierarchy.

1. Entrepreneur – one or two. There can be up to two investors, as principle owners. If there are two investors, each E2 visa entrepreneur must have 50% control of the venture.
2. Executives or Supervisors – Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.
3. Employees – Essential employees. Must possess unique skills necessary and essential to the business venture. An example would be artisans or engineers essential to the business success.

Employee Families Are Allowed

E2 visa executives and employees can be accompanied by their spouse and unmarried dependent children under 21. These family members may seek E-2 nonimmigrant classification as dependents; and if approved, generally will be granted the same period of stay as the employee.

Spouses may work while in the U.S. Also, dependents may attend U.S. schools, colleges, and universities. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.

Salaries for E2 Visa Executives and Other Employees

See more at https://es.verdinlaw.com/3-things-to-know-about-e2-visa-employee-salaries.

1. The salary amount has to be more than enough income to provide a minimal living for the E2 visa holder and his or her family.
2. Although not an official requirement, the salary amount should exceed the federal poverty guideline based on the total number of people in the E2 visa holder’s household. See https://www.uscis.gov/i-864p.
3. Although VERDIN attorneys generally recommend $40K-$100K annual salaries, E2 visa applicants should present evidence of other assets to establish that they do not require a lot of income to maintain a living.

In summary, E2 visa applicants should be prepared to show that the business has the present capacity or will have the future capacity to generate increasing revenues to provide sufficient income for the E2 visa holder.

From the USCIS Website, E-2 Treaty Investors

General Qualifications of the Employee of a Treaty Investor
To qualify for E-2 classification, the employee of a treaty investor must:

• Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
• Meet the definition of “employee” under relevant law
• Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.  See 8 CFR 214.2(e)(3)(ii).

Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

• The degree of proven expertise in the employee’s area of operations
• Whether others possess the employee’s specific skills
• The salary that the special qualifications can command
• Whether the skills and qualifications are readily available in the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  See 8 CFR 214.2(e)(18) for a more complete definition.

E2 Visa or Immigration Questions? Please Contact VERDIN Law

VERDIN Dallas, TX

Isaul Verdin has extensive experience advising multinational companies and entrepreneurs on complex US immigration matters involving investments.

Mr. Verdin focuses on advising companies on structuring entities, acquisitions, and strategic expansion to satisfy US immigration E-1, E2, L1A, L1B, or EB-1 objectives in a variety of fields. These business opportunities include real estate, aviation, technology, manufacturing, retail, luxury goods, and professional services. Additionally, he litigates deportation defense matters throughout the US.

VERDIN boasts a combined 70 years of experience in immigration law. Since its inception, VERDIN has gained a reputation for prevailing in even the most complicated immigration matters.

“As a Board Certified, Immigration Lawyer (Texas Board of Legal Specialization) with over 17 years of experience, my passion is immigration law. We will listen to your concerns, answer all your questions, and expertly guide you through your immigration process.” ~ Isaul Verdin, Founder and Managing Attorney

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