E-2 Employees: Executive, Supervisory, and Essential Skills

9 FAM 402.9-7(A) requires the prospective employer to satisfy the E nationality requirement.

If the employer is an organization, qualifying treaty nationals generally must own at least 50 percent.

If the qualifying employer is in the United States rather than residing abroad, the employer must be maintaining E status where the rule requires it.

An E-2 employee case begins with the employer's eligibility. The US enterprise must have the required treaty nationality, generally through at least 50 percent ownership by nationals of the treaty country. If ownership is layered, the nationality analysis may need to trace through intermediary entities. Where the employer is an individual present in the United States, that person's immigration status can also matter. The record should establish the ownership structure and the enterprise's continuing E-2 qualification before focusing on the proposed employee, because an otherwise qualified worker cannot cure an employer that does not meet the treaty requirements.

The current FAM expressly requires the employer and employee to have the same qualifying nationality.

This employee rule should be distinguished from derivative spouses and children, who do not need the same nationality as the principal.

The E-2 employee must have the same treaty nationality as the qualifying E employer. This is a separate requirement from the employee's job duties or professional background. Passports and ownership records should therefore be reviewed together to ensure the claimed treaty nationality is consistent. Dual nationality and corporate ownership structures can require careful analysis, particularly where the enterprise has owners from several countries. The filing should clearly identify the treaty relied upon, the nationality of the employee, and the ownership facts that give the employing enterprise the corresponding treaty nationality.

One category consists of employees whose principal and primary duties are executive or supervisory.

The other consists of employees with special qualifications that make their services essential to the efficient operation of the enterprise.

A qualifying E-2 employee must generally serve in an executive or supervisory role or possess skills that are essential to the efficient operation of the enterprise. Executive and supervisory analysis focuses on the employee's authority, responsibility, organizational placement, duties, and control over a major part of the business. Essential employee analysis examines the nature of the skills, their importance to the enterprise, the worker's experience and training, and whether the need is genuine. A specialized title alone is insufficient; the evidence should explain what the person will actually do and why the role qualifies.

The FAM's discussion of the Walsh/Pollard decision states that the develop and direct test applies to investors, not individual employees.

Employees instead qualify under executive, supervisory, or essential skills standards.

An E-2 employee is not required to make the qualifying investment personally or to satisfy the develop and direct test that applies to an investor applicant. The employee classification instead depends on the qualifying treaty enterprise and the worker's nationality and role. The business must nevertheless remain a qualifying E enterprise, so evidence of ownership, investment, operations, and business activity can still be important. The filing should clearly separate the employer's E-2 eligibility from the employee's own qualifications so the record does not imply that every employee must independently own or invest in the company.

The current FAM states that E-2 essential employees and managers must submit Form DS-156-E together with Form DS-160.

The E-2 principal investor generally does not separately submit DS-156-E because the relevant questions are integrated into the DS-160.

The procedural route affects the forms and evidence required. An E-2 employee applying for a visa abroad generally completes Form DS-160 and, under current Department of State guidance, Form DS-156E for qualifying E employees. A change or extension of status filed with USCIS generally uses Form I-129 with the applicable E supplement and supporting evidence. Company registration practices can vary by consular post. Regardless of procedure, the description of the enterprise, ownership, employee duties, compensation, qualifications, and intended US activities should remain consistent across the forms and supporting record.

• Enterprise nationality evidence
• Organizational chart
• Detailed job description
• Employee resume
• Education and training
• Prior experience
• Salary
• Company need for the role

Employee evidence should connect the legal standard to the actual organizational need. Useful records can include organizational charts, detailed duty descriptions, resumes, training records, payroll information, employment agreements, company manuals, contracts, project records, and evidence of the worker's prior experience. Executive or supervisory cases should show authority and responsibility rather than routine production work. Essential employee cases should explain why the skill is important, how it was acquired, how long the need is expected to continue, and why the employee's knowledge or experience is significant to the US enterprise.