8 CFR 214.2(e)(3) "(3) Employee of treaty trader or treaty investor. An alien employee of a treaty trader, if otherwise admissible, may be classified as E-1, and an alien employee of a treaty investor, if otherwise admissible, 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 alien's services essential to the efficient operation of the enterprise. The employee must have the same nationality as the principal alien employer. In addition, the employee must intend to depart the United States upon the expiration or termination of E-1 or E-2 status. The principal alien employer must be:

(i) A person in the United States having the nationality of the treaty country and maintaining nonimmigrant treaty trader or treaty investor status or, if not in the United States, would be classifiable as a treaty trader or treaty investor; or

(ii) An enterprise or organization at least 50 percent owned by persons in the United States having the nationality of the treaty country and maintaining nonimmigrant treaty trader or treaty investor status or who, if not in the United States, would be classifiable as treaty traders or treaty investors."

8 CFR 214.2(e)(17) - "(17) Executive and supervisory character. The applicant's position must be principally and primarily, as opposed to incidentally or collaterally, executive or supervisory in nature. Executive and supervisory duties are those which provide the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof. In determining whether the applicant has established possession of the requisite control and responsibility, a Service officer shall consider, where applicable:

(i) That an executive position is one which provides the employee with great authority to determine the policy of, and the direction for, the enterprise;

(ii) That a position primarily of supervisory character provides 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, and;

(iii) Whether the applicant possesses executive and supervisory skills and experience; a salary and position title commensurate with executive or supervisory employment; recognition or indicia of the position as one of authority and responsibility in the overall organizational structure; responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory personnel; and that, if the position requires some routine work usually performed by a staff employee, such functions may only be of an incidental nature."

8 CFR 214.2(e)(18) - "(18) Special qualifications. 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 treaty enterprise. In determining whether the skills possessed by the alien are essential to the operation of the employing treaty enterprise, a Service officer must consider, 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. A skill that is essential at one point in time may become commonplace at a later date. Skills that are needed to start up an enterprise may no longer be essential after initial operations are complete and running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Under certain circumstances, an applicant may be able to establish his or her essentiality to the treaty enterprise for a longer period of time, such as, 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. Where the treaty enterprise's need for the applicant's special qualifications, and therefore, the applicant's essentiality, is time-limited, Service officers may request that the applicant provide evidence of the period for which skills will be needed and a reasonable projected date for completion of start-up or replacement of the essential skilled workers."

22 CFR 41.51(b)(2) - "(2) Employee of treaty investor. An alien employee of a treaty investor may be classified 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. The employer must be:

(i) A person having the nationality of the treaty country, who is maintaining the status of treaty investor if in the United States or, if not in the United States, who would be classifiable as a treaty investor; or

(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors."

22 CFR 41.51(b)(12) - "(12) Executive or supervisory character. The executive or supervisory element of the employee's position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof.

(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.

(ii) A position primarily of supervisory character 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."

22 CFR 41.51(b)(13) - (13) Special qualifications. 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.

(i) 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 the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.

(ii) 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. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long-term essentiality might, however, 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.

"9 FAM 402.9-7  (U) EMPLOYEE ENTITLED TO E-1 OR E-2 VISA

(CT:VISA-2190;   02-17-2026)

9 FAM 402.9-7(A)  (U) Employer Qualifications

(CT:VISA-2190;   02-17-2026)

(U) To qualify to bring an employee into the United States under INA 101(a)(15)(E) the following criteria must be met:  

(1)  (U) Prospective employer must meet the nationality requirement, i.e., if an individual, the nationality of the treaty country or, if a corporation or other business organization, at least 50 percent of the ownership must have the nationality of the treaty country (see 9 FAM 402.9-4(B) above).  

(2)  (U) Employer and the employee must have the same nationality; and

(3)  (U) Employer, if not residing outside the United States, must be maintaining “E” status in the United States.

9 FAM 402.9-7(B)  (U) Executive and Supervisory Employee Responsibility

(CT:VISA-2190;   02-17-2026)

(U) In evaluating the executive and/or supervisory element, you should consider the following factors:

(1)  (U) The title of the position to which the applicant is destined, its place in the firm’s organizational structure, the duties of the position, the degree to which the applicant will have ultimate control and responsibility for the firm’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;

(2)  (U) Whether the executive or supervisory element of the position is a principal and primary function 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 would not be termed executive or supervisory; and

(3)  (U) The weight to be accorded a given factor, which may vary from case to case.  For example, the position title of “vice president” or “manager” might be of use in assessing the supervisory nature of a position if the applicant were coming to a major operation having numerous employees.  However, if the applicant were coming to a small two-person office, such a title in and of itself would be of little significance.

9 FAM 402.9-7(C)  (U) Essential Employees

(CT:VISA-2190;   02-17-2026)

a. (U) The regulations provide E visa classification for employees who have special qualifications that make the service to be rendered essential to the efficient operation of the enterprise.  The employee must, therefore, possess specialized skills and, similarly, such skills must be needed by the enterprise.  The burden of proof to establish that the applicant has special qualifications essential to the effectiveness of the firm’s United States operations falls on the company and the applicant.

b. (U) The determination of whether an employee is an “essential employee” in this context requires the exercise of judgment.  It cannot be decided by the mechanical application of a bright-line test.  By its very nature, essentiality must be assessed on the facts in each case.

c. (U) Specialized Skills:  

(1)  (U) Once the business has established the need for a specific skillset, you must determine whether the skills are specialized.  If so, the visa applicant must satisfy you that he or she possesses these skills.  In assessing the specialized nature of the skills sought and whether the applicant possesses these skills, consider the following:

(a)  (U) The experience and training necessary to achieve such skill(s);

(b)  (U) The uniqueness of such skills;

(c)  (U) The availability of U.S. workers with such skills;

(d)  (U) The salary such special expertise can command;

(e)  (U) The degree of proven expertise of the applicant in the area of specialization; and

(f)   (U) The function of the job to which the applicant is destined.

(2)  (U) In some cases, ordinarily skilled workers can qualify as essential employees, and 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 time.  Such employees derive their essentiality from their familiarity with the overseas operations rather than the nature of their skills.  The specialization of skills lies in the knowledge of the peculiarities of the operation of the employer’s enterprise rather than in the rote skill held by the applicant.

(3)  (U) Previous Employment with E Visa Firm:  Apart from an ordinarily skilled worker who is relying on their familiarity with the overseas operation to qualify as specialized knowledge, there is no requirement that an “essential” employee have any previous employment with the enterprise in question.  The focus of essentiality is on the business needs for the essential skills and of the applicant’s possession of such.  Firms may need skills to operate their business, even though they don’t have employees with such skills currently on their employment rolls.

(4)  (U) You may request whatever documentation is needed to address the specialized nature of the skillset sought including requesting statements from such sources as chambers of commerce, labor organizations, industry trade sources, or state employment services as to the unavailability of U.S. workers in the skill areas concerned.

d. (U) Duration of Essentiality:  The applicant bears the burden of establishing at the time of initial application and each subsequent application not only that he or she possesses the requisite specialized skills but, also, the length of time that such skills will be needed.  Some skills may be essential for as long as the business is operating.  Others, however, may be necessary for a shorter time, such as in start-up cases, and it is reasonable that after a short time the enterprise will be able to train American employees with the specialized skills needed to successfully operate the enterprise.  In assessing the claimed duration of essentiality, consider the time needed to onboard the employee and time to perform the contemplated duties.  What is highly specialized and unique today might not be in a few years.  Although there is a broad spectrum between the extremes set forth below, you may draw some perspective on this issue from these examples:

(1)  (U) Long-term need - The employer may show a need for the skill(s) on an on-going basis when the employee(s) will be engaged in functions such as continuous development of product improvement, quality control, or provision of a service otherwise unavailable (as in Walsh & Pollard).

(2)  (U) Short-term need - The employer may need the skills for only a relatively short (e.g., one or two years) period when the purpose of the employee(s) relate(s) to start-up operations (of either the business or a new activity by the business) or to training and supervision of technicians employed in manufacturing, maintenance and repair functions._