The U.S. Citizenship and Immigration Services (USCIS) will grant an E-2 Visa to a foreign national who is coming to the U.S. “solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.” However, there is a second category of E-2 visa for an “employee coming to the United States if the employee has “special qualifications” that make the alien’s services essential to the efficient operation of the enterprise.
However, the E-2 application in that instance must provide specific information about the “special qualifications” or it will be denied. In particular, the regulations at 8 C.P.R. § 214.2(e)(18) defines the term “special qualifications” as 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 treaty enterprise. The regulation further states that in order to determine whether the skills possessed by the alien are essential to the efficient operation of the employing treaty enterprise, a Service officer must consider the following factors, where applicable: (i) The degree of proven expertise of the alien in the area of operations involved; whether others possess the applicant’s specific skill or aptitude; the length of the applicant’s experience and/or training with the treaty enterprise; the period of training or other experience necessary to perform effectively the projected duties; the relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command; that knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement, and; (ii) Whether the skills and qualifications are readily available in the United States. In all cases, in determining whether the applicant possesses special qualifications which are essential to the treaty enterprise, a Service officer must take into account all the particular facts presented.
An example of the failure to meet such requirements can be seen in a USCIS May 2014 decision denying the application for an E-2 “Special Qualifications” Visa to a Korean Restaurant chef. Klassen Ingalls can assist in meeting the requirements for an E-2 “Special Qualifications” Visa.
For more information contact: Blair Sibley at 301-806-3439 or blair@klasseningalls.com