I was recently asked whether a person in the U.S. as an E-2 treaty investor employee could somehow “transfer” his or her E-2 visa to a different company; perhaps to a company that is in no way affiliated with his or her present company. The answer is, as is often the case, maybe. Yet, the express law from the CFR does not appear to unambiguously prohibit such transfer.
First, we must ensure that any new company to which the E-2 employee would like to transfer meets the basic requirements for an E-2 visa. If so, according to the USCIS, the following are terms and conditions of E-2 Status:
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. However, as regards E-2 transfer to parent or subsidiaries, an E-2 employee may also work for the treaty organization’s parent company or one of its subsidiaries as long as the 1) relationship between the organizations is established; 2) subsidiary employment requires executive, supervisory, or essential skills; and 3) the terms and conditions of employment have not otherwise changed. Thus, it appears that you can also work for a company related to your present company. Unfortunately, that may not be an option or the desired goal.
If your goal is to work at an unrelated but qualifying E-2 company, you may have a few choices. One option that I have seen discussed is to apply to change from E-2 to B-1 and then back to E-2 again. This may buy you time, particularly if you are leaving your initial E-2 company and have not secured new status. Another option is to do a direct change of status where your new company petitions an E-2 for you.
The express law on point may leave room to apply for a change of status from E-2 at Company A to E-2 at unaffiliated Company B. As already discussed above, the Code of Federal Regulations, 8 CFR 214.2(e), states that “a treaty employee may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status”. Notwithstanding, pursuant to 8 CFR 214.2(e)(8)(iii), prior Service approval must be obtained where there will be a substantive change in the terms or conditions of E status. In such cases, a treaty alien must file a new application on Form I-129 and E supplement, in accordance with the instructions on that form, requesting extension of stay in the U.S. In support of an alien’s Form I-129 application, the treaty alien must submit evidence of continued eligibility for E classification in the new capacity. Alternatively, the alien must obtain from a consular officer a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry.
Pursuant to 8 CFR 214.2(e)(8)(vi), if an application to change the terms and conditions of E status or employment is approved, the Service shall notify the applicant on Form I-797. An extension of stay in nonimmigrant E classification may be granted for the validity of the approved application. The alien is not authorized to begin the new employment until the application is approved.
Please note that employment is authorized only for the period of time the alien remains in the U.S. If the alien subsequently departs from the U.S., readmission in E classification may be authorized where the alien presents his or her unexpired E via together with the Form I-797, Approval Notice, indicating Service approval of a change of employer or a change in the substantive terms or conditions of treaty status or employment in E classification. The other exception may be where the alien is applying for readmission to engage in the new treaty activity after an absence not exceeding 30 days solely in contiguous territory (pursuant to 22 CFR 41.112(d))
Finally, pursuant to 8 CFR 214.2(e)(8)(vii), an unauthorized change of employment to a new employer will constitute a failure to maintain status.
Thus, the Code appears to contemplate change of employment to a new employer, albeit rather ambiguously, and applying for permission for the same through an I-129+E Supplement. I have found some notes in the USCIS files discussing how Section 214.2(e)(8) does permit change of employment to an unaffiliated company within the U.S. Moreover, the fact that working for subsidiaries will not be deemed to constitute a substantive change, pursuant to Section (8)(ii), indicates that the substantive change provisions of (8)(iii) contemplate working for non-affiliated companies.
Changing specific employers, so long as requirements (such as nationality and percentage interest) were maintained, may not run afoul of other E-2 employee express requirements either. For example, the employee must intend to depart the U.S. upon the expiration of E-1 or E-2 status, and such would remain the same independent of the particular company involved.
Having an acquaintance with the express code is at least a first step to providing a foundation for your E-2 endeavors. Should you wish to change companies and seek legal counsel on the matter, most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.