Das Handbuch des State Departments sagt u.a. folgendes:
9 FAM 41.51 N14 EMPLOYEE ENTITLED TO E-
1 OR E-2 VISA
9 FAM 41.51 N14.1 Employer Qualifications
(TL:VISA-78; 05-07-1993)
In order to qualify to bring an employee into the United States under INA
101(a)(15)(E), the prospective employer in the United States must be
maintaining status under INA 101(a)(15)(E). In order to qualify to bring an
employee into the United States under INA 101(a)(15)(E), several criteria
must be met. The:
(1) 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% of the
ownership must have the nationality of the treaty country.
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9 FAM 41.51 Notes Page 17 of 32
NOTE: A permanent resident alien does not qualify to bring in employees
under INA 101(a)(15)(E). Moreover, shares of a corporation or other
business organization owned by permanent resident aliens cannot be
considered in determining majority ownership by nationals of the treaty
country to qualify the company for bringing in alien employees under INA
101(a)(15)(E);
(2) Employer and the employee must have the same nationality; and,
(3) Employer, if not resident abroad, must be maintaining “E” status in
the United States.
9 FAM 41.51 N14.2 Executive and Supervisory
Employee Responsibility
(TL:VISA-322; 10-10-2001)
In evaluating the executive and/or supervisory element, the consular officer
should consider the following factors:
(1) 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) 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 could not be termed executive or supervisory; and
(3) 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 41.51 N14.3 Essential Employees
U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
9 FAM 41.51 Notes Page 18 of 32
(TL:VISA-78; 05-07-1993)
a. 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 is on the company and the applicant.
b. The determination of whether an employee is an “essential employee” in
this context requires the exercise of judgment. It can not be decided by
the mechanical application of a bright-line text. By its very nature,
essentiality must be assessed on the particular facts in each case.
9 FAM 41.51 N14.3-1 Duration of Essentiality
(TL:VISA-78; 05-07-1993)
a. The applicant bears the burden of establishing at the time of application
not only the need for the skills that he or she offers but, also, the length
of time that such skills will be needed. In general, the E classification is
intended for specialists and not for ordinary skilled workers. There are,
however, exceptions to this generalization. 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.
b. Although there is a broad spectrum between the extremes set forth
below, consular officers may draw some perspective on this issue from
these examples:
(1) 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) Short-term need - The employer may need the skills for only a
relatively short (e.g., one or two years) period of time when the
purpose of the employee(s) relate 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.
9 FAM 41.51 N14.3-2 General Factors To Be Considered
(TL:VISA-78; 05-07-1993)
a. Once the business has established the need for the specialized skills, the
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9 FAM 41.51 Notes Page 19 of 32
experience and training necessary to achieve such skill(s) must be
analyzed to recognize the special qualities of the skills in question. The
question of duration of need will cause variances among the kinds of skills
involved. Not least, the visa applicant must prove that he or she
possesses these skills, by demonstrating the requisite training and/or
experience.
b. In assessing the specialized skills and their essentiality, the consular
officer should consider such factors as the:
(1) Degree of proven expertise of the alien in the area of specialization;
(2) The uniqueness of the specific skills;
(3) The function of the job to which the alien is destined; and
(4) The salary such special expertise can command.
In assessing the claimed duration of essentiality, the consular officer should
look to the period of training needed to perform the contemplated duties
and, in some cases, the length of experience and training with the firm.
c. The availability of U.S. workers provides another factor in assessing the
degree of specialization the applicant possesses and the essentiality of
this skilled worker to the successful operation of the business. This
consideration is not a labor certification test, but a measure of the degree
of specialization of the skills in question and the need for such. For
example, a TV technician coming to train U.S. workers in new TV
technology not generally available in the U.S. market probably would
qualify for a visa.
d. If the essential skills question cannot be resolved on the basis of initial
documentation, the consular officer might ask the firm to provide
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.
e. Using the criteria above, the consul can then make a judgment as to
whether the employee is essential for the efficient operation of enterprise
for an indefinite period or for a shorter period. It might be determined
that some skills are essential for as long as the business is operating.
There may be little problem in assessing the need for the employee in the
United States in the short term, such as start-up cases. Long-term
employment presents a different issue, in that what is highly specialized
and unique today might not be in a few years. It is anticipated that such
changes would more likely occur in industries of rapid development, such
as any computer-related industry. Although this may not be fully
determinable at the time of initial application, the consular officer should
monitor this at the time of any application for reissuance. The alien at
that time will bear the burden of establishing that his or her specialized
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9 FAM 41.51 Notes Page 20 of 32
skills are still needed and that the applicant still possesses such skills.
