Employees of E-1 and E-2 nonimmigrant treaty traders and investors must have the same nationality as the treaty employer and must be either executives or supervisors. An executive position is one which provides the employee with great authority to determine the policy and the direction of the enterprise, while a supervisory position involves the employee supervising a significant portion of the enterprise’s operations. Such an employee may also work in a lesser capacity which is “essential” to the operation of the enterprise.
A non-supervisory foreign national with special qualifications may be classified as an E-1 or E-2 nonimmigrant, provided he is determined to be an “essential” employee. Depending on whether an individual changes his nonimmigrant status to an E-1 nonimmigrant status while he is in the United States, or applies for an E-1 nonimmigrant visa at a U.S. embassy or consulate, USCIS or the DOS will take several things into consideration when determining whether the skills possessed by an alien are essential to the operation of the employing treaty enterprise. These include the degree of an individual’s proven expertise in the particular area of operations, whether others possess the skill, the extent of experience or training, the experience or training necessary for the particular duties, the importance of the skills to the operation, whether the skills are readily obtainable in the United States, salary, and the availability of U.S. workers to perform the work in the position.
Note that knowledge of a foreign language and culture, knowledge of country conditions, or previous employment do not by themselves meet the special qualifications requirement. One would need to analyze their essentiality in relationship to the enterprise. Also, an essential employee’s skills do not have to be “unique” or “one of a kind”; rather, they must be “indispensable to the success of the enterprise.” Finally, whether essential skills are needed or available will vary over the time of an enterprise when the provision of the service is not generally available in the United States (e.g., a start-up enterprise situation, as opposed to a fully mature business).
In all cases, USCIS or the DOS take into account all of the particular facts presented. A skill that is essential at one point may become commonplace at a later date. Skills that are needed to start up an enterprise may no longer be essential after initial operations have been established. Some skills may only be essential for a short period of time (e.g., the training of locally hired employees). In certain circumstances, a foreign national may be able to establish his essentiality to the treaty enterprise for a longer period of time (e.g., in connection with activities in the areas of product improvement, quality control, or the provision of a service not yet generally available in the United States). In some circumstances, USCIS or the DOS may request that the foreign national provide evidence of the period for which his skills will be needed and a reasonable projected date for completion of start-up or the replacement of the essential skilled workers.