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(d). The E2 applicant must play an essential role in the enterprise
This can be achieved in
two ways
Principal
Investors
To obtain E-2 status as a
principal investor the applicant must be in a position to ‘develop and
control’ the investment.
In
order to be in a position to develop and control the enterprise the applicant
normally shows that he has at least a 50% ownership interest on the enterprise.
For example if two UK nationals each purchase a US business and own the business
as 50/50 partners both of them may obtain E2 visas as principal investors in the
event that the investment otherwise qualifies.
Employees of
the Investing Enterprise
Two classes of employees
may be accorded treaty-investor status,
• Treaty nationals serving
in a managerial, supervisory or executive capacity
• Treaty nationals who
serve in technical capacities requiring special training and qualifications,
and who are needed to:
—
establish the enterprise (start-up).
—
train
or supervise persons serving in technical positions, such as manufacturing,
maintenance, or repair technicians.
—
continuously
monitor and develop product improvement and quality control.
A key aspect of
determining how essential an employee is to the operation is whether U.S.
workers have the necessary skills to fill the positions.
When special skills
employees are brought to the U.S. for start-up of the enterprise, it is expected
that once start-up has been completed, U.S. workers will be trained to fill
these positions. The U.S. government has a policy establishing one year as the
rule of thumb for the necessity for start-up personnel. Renewal of visas for
start-up personnel after one year often occurs, however, if the employer affirms
the need for their continued presence.
The E2 enterprise will not be able to front
load or overstaff with overseas managers/supervisors
and specialist skills employees.
There
must exist some kind of proportionality between the number of Overseas and US
employees.