E-2 Employee Requirements

If the employer is an organization, at least 50 percent of its ownership generally must possess the nationality of the treaty country.

The E-2 employee classification depends first on a qualifying treaty enterprise or individual employer. When the employer is an organization, current rules generally require at least 50 percent ownership by persons with the treaty nationality and the ownership chain may need to be traced to the ultimate owners. When the employer is an individual, that person must possess the treaty nationality and satisfy the applicable E status or classifiability requirement. The employee case should therefore establish the employer foundation before turning to the employee's own nationality and duties.

The employee cannot rely merely on the fact that the enterprise qualifies under some E treaty. The employee must possess the nationality required for the particular treaty enterprise.

The employee must possess the same treaty-country nationality as the qualifying E employer. Citizenship in some other E-2 treaty country is not enough. The application should identify the nationality on which the enterprise relies and document that the employee holds that same nationality. For an organizational employer, stock records, ownership schedules, parent-company evidence, and owner passports may be needed to establish the enterprise nationality. The employee's passport and other biographic records should then consistently reflect the nationality used for the E-2 employee classification.

The employee must be coming to perform executive or supervisory duties or possess special qualifications that make the employee essential to the enterprise.

Ordinary employment does not qualify for E-2 employee classification. The employee must principally and primarily perform duties of an executive or supervisory character, or possess special qualifications that make the employee's services essential to the successful or efficient operation of the enterprise. The filing should choose the theory supported by the facts and organize the evidence around that standard. A broad assertion that an employee is important to the company does not substitute for evidence showing actual executive or supervisory responsibility or a genuinely specialized essential skill set.

The adjudicator evaluates duties, organizational placement, responsibility, subordinate employees, salary, and prior experience.

For executive or supervisory employees, current guidance focuses on actual responsibility rather than job title. Relevant considerations include the employee's organizational placement, duties, degree of control and responsibility, number and skill levels of supervised employees, compensation, and qualifying experience. The record should explain the decisions the employee makes, the functions or departments controlled, reporting relationships, and the nature of any subordinate staff. Organization charts, payroll, job descriptions, employer letters, and prior experience should consistently support the claimed level of responsibility.

The analysis considers the nature of the skills, whether the applicant possesses them, availability in the United States, salary, training, experience, and the function of the position.

For an essential employee, the company must identify the specialized qualifications it needs and prove that the applicant possesses them. Current FAM guidance considers factors such as experience and training, uniqueness of the skills, availability of US workers, compensation, proven expertise, and the function of the proposed job. The filing should connect the applicant's particular abilities to an operational need of the enterprise and explain how long the need is expected to continue. General competence or ordinary occupational experience, without more, may not establish essentiality.

The employee must maintain eligibility for E classification and the qualifying employment during the period of E status.

E-2 is a nonimmigrant classification, and the employee must remain eligible throughout the period of E status. Current Department of State guidance requires intent to depart when E status terminates, even though an E applicant does not have to maintain an unabandoned foreign residence. Continued status also depends on the qualifying employment and enterprise. Material changes in ownership, employer identity, duties, or the basis for employee qualification should therefore be reviewed promptly, and extensions or later visa applications should establish that the employee and employer continue to satisfy the E requirements.