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 An alien employee of a treaty investor may be classified as E-2, if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. Employees of treaty investors seeking E status must also have the same nationality as their employer. In order to support a treaty investor application filed on behalf of an alien employee of a treaty trader, the employer must be:
Executive or Supervisory Character Executive or supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof. An executive position provides the employee great authority to determine policy of and direction for the enterprise. A supervisory position grants 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. In order to qualify as an executive or supervisory employee, the executive or supervisory element of the employee' position must be a principal and primary function of the position and not an incidental or collateral function. For example, if the position principally requires management skills or entails key supervisory responsibility for a large portion of a firm's operations and only incidentally involves routine substantive staff work, an E classification would generally be appropriate. Conversely, if the position chiefly involves routine work and secondarily entails supervision of low-level employees, the position could not be termed executive or supervisory. In determining whether the proposed position is executive or supervisory, consular officers will consider the title of the position, its place in the company's organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the company's overall operations or a major component thereof, the number and skill levels of the employees the applicant will supervise, the level of pay, and whether the applicant possesses qualifying executive or supervisory experience. Essential Skills The applicant bears the burden of establishing at the time of application not only the need for the special qualifications that he or she offers but also the length of time that such skills will be needed. In general, the E classification is intended for specialists and not for ordinary skilled workers. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise. The essential nature of the alien's skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary that the special qualifications can command. Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application, on a case-by-case basis. In assessing the specialized skills and their essentiality, the consular officer should consider such factors as:
There is no requirement that an "essential" employee have any previous employment with the treaty enterprise. The only time that such previous employment is a factor is when the needed skills can only be obtained by that employment. There are two distinct types of essential skills workers: (a) short-term essential skills workers, and (b) long-term essential skills workers. Each type is briefly discussed below. Short Term Essential Skills In the case of short-term essential workers, the employer may need the skills for only a relatively short period of time when the purpose of the employee's admission relates to start-up operations (of either the business or a new activity by the business) or to the training and supervision of technicians employed in manufacturing, maintenance and repair functions. Ordinarily skilled workers can qualify as essential employees but this almost always involves workers needed for start-up or training purposes. A new business or an established business expanding into a new field in the United States might need employees who are ordinarily skilled workers for a short period of time. Such employees derive their essentiality from their familiarity with the overseas operations rather than the nature of their skills. Employers in such cases are expected to train United States workers to replace these employees, usually within one or two years. Short-term essential skills workers are therefore in a less desirable position than L-1B specialized knowledge workers, who are not required to demonstrate that U.S. workers will be trained to replace them. Long Term Essential Skills Long-term essentiality may be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States. If an applicant establishes that she has special qualifications and, on a long-term basis, these qualifications are essential for the efficient operation of the treaty enterprise, the training of United States workers as replacement workers is not required. It should therefore be possible for such an employee to remain in the United States, in either E status, for an indefinite period of time. |
