E-1 or E-2 visa for foreign employees
October 26, 2016
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.