June 30, 2022

Volume XII, Number 181

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Treaty of Commerce and Navigation Visas as Work Visa Option for Manufacturing Companies

In their search for skilled workers, manufacturers should not overlook countries with which the United States maintains a treaty. Such treaty countries offer an additional avenue to find skilled, non-professional employees.

Most companies in the manufacturing industry are facing worker shortages in skilled, but not necessarily professional, positions, requiring creative solutions to source additional talent. These companies may turn to contractors or subcontractors to assist in their manufacturing projects. In some cases, these contractors or subcontractors may be foreign-owned — particularly in sectors where other countries’ industries are highly competitive, such as the German automotive industry or the Japanese electronics industry, among other sectors.

Many employment-based visas, such as the nonimmigrant H-1B or TN visas, are not feasible options for skilled, non-professional workers, as these visas require the positions to be “professional” or require at least a bachelor’s degree.

Manufacturing companies, however, may have additional options to find skilled workers by utilizing international investments from “treaty countries.” These are countries with which the United States maintains a treaty of commerce and navigation or a qualifying international agreement. The United States maintains treaties of commerce and navigation with several dozen countries around the world — qualifying these countries for E-1 or E-2 visas.

Certain foreign-owned manufacturing companies in the United States may be able to source additional labor from a previously untapped talent pool and hire skilled labor from abroad. Manufacturing companies that contract or subcontract certain portions of their work to certain foreign-owned companies also may benefit from this option.

E-1 visas are reserved for foreign individuals or organizations engaged in trade principally between the United States and the treaty country. E-2 visas are reserved for foreign individuals or organizations that have invested or are actively in the process of investing a substantial amount of capital in an enterprise in the United States. Certain employees also possessing the nationality of the treaty country similarly may be eligible for this classification, including executives, supervisors, or employees with special qualifications that make them essential to the operation of the enterprise. 8 CFR 214.2(e)(3)(ii).

Because “special qualifications” is defined broadly, employees in lesser capacities may be considered essential to the successful or efficient operation of the treaty enterprise. Crucially, the immigration regulations take into account whether the skills and qualifications are readily available in the United States. In industries that have been hit hard by worker shortages, a larger number of professions than ever before may meet these criteria.

E-1 and E-2 visa holders may be admitted to the United States for two years and can continue to extend their stay in two-year increments for as long as the underlying trade or investment is maintained and as long as the employee continues to be employed in an executive, supervisory, or essential capacity. Moreover, E-1 and E-2 employees may bring their family with them as dependents, and dependent spouses may obtain work authorization, as well.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 95
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About this Author

James M Stone Labor & Employment Attorney Jackson Lewis Cleveland, OH
Principal

James M. Stone is a principal of the Cleveland, Ohio, office of Jackson Lewis P.C. From the opening of the office in 2006 until early 2020, Jim served as office managing principal in Cleveland, when he stepped down to focus on his busy practice and increased task force activities within practice groups and industry teams.

With more than 25 years of experience in labor and employment law, he has conducted more than 120 negotiations with unions, represented companies in hundreds of employment discrimination, wrongful discharge, and other claims in court and...

216-750-4307
Kimberly M. Bennett Immigration Attorney Jackson Lewis Law Firm
Associate

Kimberly M. Bennett is an Associate in the Washington, D.C. Region office of Jackson Lewis P.C. She works to provide high-level immigration services for companies seeking increased global mobility for its employees, including assistance with nonimmigrant and immigrant visa petitions. She also advises on employer compliance and assists employers with drafting and implementing formal immigration policies.

Ms. Bennett has exercised her versatility in immigration matters, working with Fortune 500 companies and start-up businesses in technology, finance,...

703-483-8337
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