Determining who qualifies as an essential employee for an E-2 Visa can often be complex. According to 9 FAM 402.9-7(C), essential employees should have unique qualifications necessary for the efficient operation of the enterprise and possess specialized skills needed by the business. So, what are these specialized skills, and how is essentiality determined? Let’s look into the details.
Determining Essentiality
Determining whether an employee is “essential” isn’t as straightforward as applying a rigid rule. It’s not a bright-line test but rather involves a careful exercise of judgment and is assessed based on the facts presented in each case.
The Significance of Specialized Skills
The skills in question must be specialized. For a visa applicant to qualify, they should convincingly demonstrate possessing these skills. Consideration factors include the training and experience necessary for the skill, its uniqueness, the availability of U.S. workers with the skill, the salary commanded by such expertise, the degree of the applicant’s proven expertise, and the function of the applicant’s intended job.
In some cases, skilled workers can also qualify as essential employees, particularly for start-up or training purposes. The essentiality derives from their familiarity with the enterprise’s overseas operations rather than the nature of their skills.
Previous Employment with E Visa Firm: Is it Mandatory?
Contrary to common misconceptions, an “essential” employee does not need to work for the enterprise previously. Essentiality focuses more on the business needs for the essential skills and the applicant’s possession of such.
Evaluating the Duration of Essentiality
The applicant must prove they possess the requisite specialized skills and the length of time such skills will be needed. Some skills may be essential for the business’s lifetime, while others may only be necessary for a shorter period, such as in start-up cases.
Conclusion
Determining an “essential” employee for an E-2 visa is a dynamic process that considers several factors, such as the nature of the skills, the duration of their need, and the business context. Understanding these details can make the visa application process much smoother and increase the chances of success.
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