Understanding The E-2 visa

The E-2 visa is a nonimmigrant visa that allows foreign nationals of treaty countries to invest a substantial amount of capital in a bona fide enterprise in the United States and direct its operations. Treaty countries are those that have a bilateral investment treaty or a free trade agreement with the United States.

To qualify for an E-2 visa, you must meet the following requirements:

• You must be a national of a treaty country.
• You must have invested or be in the process of investing a substantial amount of capital in a US business. There is no fixed minimum amount, but it must be proportional to the value and nature of the business and sufficient to ensure its successful operation.
• You must own at least 50% of the US business or have operational control over it.
• You must intend to depart the United States when your E-2 status expires or is terminated.
• You can get an E-2 visa through a franchise as well.

An immigration law consultation can help you determine your E-2 visa eligibility.

Application Process

To apply for an E-2 visa, you must follow these steps:

• File Form DS-160, Online Nonimmigrant Visa Application, and pay the visa fee.
• Gather the required documents, such as your passport, proof of nationality, proof of investment, business plan, and financial statements.
• Schedule an interview at the US embassy or consulate in your home country or country of residence.
• Attend the interview and present your documents and evidence. The consular officer will review your application and determine your eligibility and admissibility.

If your application is approved, you will receive an E-2 visa stamp on your passport. The validity period of your visa will depend on the reciprocity schedule of your country of nationality, which can range from a few months to five years.

You’ll then be able to travel to the United States and present your visa and passport at the port of entry. The immigration officer will inspect your documents and admit you to the United States in E-2 status. The duration of your stay will be determined by the officer, but it cannot exceed two years at a time. You can apply for extensions of stay (meaning, your I-94 stay) in the U.S. in increments of up to two years each as long as you maintain your E-2 eligibility.

Benefits and Limitations

The E-2 visa has several benefits and limitations that you should be aware of before you apply. Some of the benefits are:

• You can start and run your own business in the United States or work for an existing E-2 business as an executive, manager, or essential employee.
• You can travel in and out of the United States freely as long as your visa and passport are valid.
• You can bring your spouse and unmarried children under 21 years of age to the United States as dependents. Your spouse can work, and your children can attend school without changing their status.

You can apply for other nonimmigrant or be the beneficiary of an immigrant visa petition, such as EB-1 extraordinary ability visa, EB-2 National Interest Waiver, or EB-3 skilled worker visa, without affecting your E-2 status.

Some of the limitations are:

• You cannot change the nature or scope of your business without notifying the US government and obtaining approval. If your business fails or ceases to operate, you may lose your E-2 status.
• You cannot work for any other employer or engage in any other activity that is not related to your E-2 business.
• You must maintain your intention to depart the United States when your E-2 status expires or is terminated. The E-2 does not lead to permanent residence.
• You’re subject to US tax laws and regulations, and you may have to file and pay taxes on your income and assets in the United States.

Our immigration attorney office can help you better weigh the pros and cons.

Unpacking E-2 Change of Status

E-2 change of status is an option that allows you to transition from another nonimmigrant visa category, such as tourist (B-2) or student visa (F-1) to E-2 without leaving the United States. This can save you a trip back home since you don’t have to apply for a new visa at a US embassy or consulate abroad. However, an E-2 change of status is not available for everyone, and it has some drawbacks that you should consider before you apply.

To qualify for E-2 change of status, you must meet the following requirements:

• You must be in the United States in a valid nonimmigrant status that allows you to change to another category. Some visa categories, such as C-1/D crewmembers, K-1 fiancé(e)s, and J-1 exchange visitors subject to the two-year home residency requirement, are not eligible for change of status. ESTA is not a visa and you cannot change from ESTA to E-2.
• You must have invested or be in the process of investing a substantial amount of capital in a US business that meets the E-2 criteria, as explained in section 1.1.
• You must not have violated the terms and conditions of your current status or overstayed your authorized period of stay.

Application Process

To apply for an E-2 change of status, an immigration lawyer, must follow these steps:

• File Form I-129, Petition for a Nonimmigrant Worker, with the US Citizenship and Immigration Services (USCIS), and pay the filing fee and the fraud prevention and detection fee.
• Attach the required documents and evidence, such as your passport, proof of nationality, proof of investment, business plan, and financial statements.

Wait for the USCIS to process your application and issue a decision. The processing time may vary depending on the workload and the complexity of your case, but it usually takes several months. You can check the current processing times here.

If your application is approved, you will receive a Form I-797, Notice of Action, that confirms your change of status to E-2. The validity period of your status will depend on the USCIS’s discretion, but it cannot exceed two years at a time. You can apply for extensions of stay in increments of up to two years each as long as you maintain your E-2 eligibility.

If your application is denied, you will receive a notice that explains the reasons for the denial and your options to appeal or reapply. You may also be placed in removal proceedings if you’re out of status or have committed any immigration violations.

Benefits and Limitations

Doing an E-2 change of status has some benefits and limitations that you should weigh with your immigration lawyer before you apply. Some of the benefits are:

• You can avoid the hassle and expense of applying for a new visa at a US embassy or consulate abroad and the uncertainty of the consular officer’s discretion.
• You can start or continue working for your E-2 business as soon as your change of status is approved without having to wait for your visa stamp or travel to the United States.
• You can enjoy the same benefits of the E-2 visa, as described in section 1.3, while you’re in the United States in E-2 status.

Some of the limitations are:

• You cannot travel outside the United States while your change of status application is pending, or you will abandon your application and lose your status.
• You will not receive a visa stamp on your passport, which means that if you travel outside the United States after your change of status is approved, you will have to apply for an E-2 visa at a US embassy or consulate abroad to re-enter the United States.
• You may face more scrutiny and delays from the USCIS than from the DOS, as the USCIS has more resources and authority to verify your eligibility and admissibility.
• You may have to deal with the inconsistency and confusion between the USCIS and the DOS regarding the interpretation and application of the E-2 requirements and regulations.

Key Differences

Legal Distinctions

One of the main differences between applying for an E-2 visa and applying for an E-2 change of status is the legal distinction between them.

An E-2 visa is a type of work visa for the US or a nonimmigrant visa that grants you the right to enter and stay in the US as an E-2 investor. An E-2 change of status, on the other hand, is a change of your existing nonimmigrant status (such as B-1, B-2, F-1, etc.) to an E-2 status without leaving the US.

However, an E-2 change of status does not grant you an E-2 visa. This means that if you leave the US after obtaining an E-2 change of status, you will need to apply for an E-2 visa at a US consulate abroad in order to re-enter the US. Therefore, an E-2 change of status is only valid while you remain in the US.

Financial Requirements

Another difference between applying for an E-2 visa and applying for an E-2 change of status is the variation in financial criteria for both processes.

The E-2 visa requirements include proving that you have invested or are in the process of investing a substantial amount of money in a US business. The amount of investment must be sufficient to ensure the successful operation of the business, and the business must be at risk of loss if it fails. The exact amount of investment depends on the nature and size of the business, but it’s generally expected to be in the range of $100,000 to $200,000 or more.

Additionally, you must demonstrate that you have the funds to support yourself and your family while in the US and that you intend to return to your home country after your E-2 status expires. It’s recommended that you get a better understanding of the requirements through an immigration lawyer.

The financial requirements for an E-2 change of status are the same as those for an E-2 visa, but there are some different considerations. For example, suppose you’re already in the US on a different nonimmigrant status. In that case, you may have already invested in a US business or have a binding agreement to do so.

Furthermore, if you’re applying for an E-2 change of status from a B-1 or B-2 status or other nonimmigrant status, you will need to prove that you intend to return to your home country at the end of your E-2 stay.

Processing Time

The processing time for an E-2 visa and an E-2 change of status may vary depending on several factors, such as the workload of the US consulate or the US Citizenship and Immigration Services (USCIS), the complexity of your case, and the availability of supporting documents.

However, in general, applying for an E-2 visa at a US consulate abroad may take less time than applying for an E-2 change of status within the US. This is because the US consulate may have a faster and more streamlined process for reviewing and approving E-2 visa applications, while the USCIS may have a longer and more rigorous process for adjudicating E-2 change of status applications.

Moreover, the US consulate may offer expedited processing or interview scheduling for E-2 visa applicants, while the USCIS provides such options for E-2 change of status applicants with premium process for a hefty fee. Therefore, if you’re in a hurry to obtain an E-2 status, applying for an E-2 visa at a US consulate abroad may be a better option than applying for an E-2 change of status within the US.

Expert Insights and Tips

Legal Counsel and the Importance Of Hiring An Immigration Lawyer

Applying for an E-2 visa or an E-2 change of status can be a complex and challenging process, as it involves meeting various legal and financial requirements, preparing and submitting various forms and documents, and dealing with potential delays or denials. Therefore, it’s highly recommended that you seek legal counsel and hire an immigration lawyer who specializes in E-2 matters.

An immigration lawyer can help you with the following aspects of your E-2 application:

• Assessing your eligibility and suitability for an E-2 visa or an E-2 change of status
• Advising you on the best option and strategy for obtaining an E-2 status, such as getting an E-2 visa through a franchise
• Assisting you with qualifying your US business for the E-2 visa
• Helping you with preparing and gathering the necessary evidence of your investment and your E-2 eligibility
• Filing and submitting your E-2 application to the US consulate or the USCIS
• Communicating and following up with the US consulate or the USCIS on your behalf
• Representing you and advocating for you in case of any issues or complications with your E-2 application

By hiring an immigration lawyer, you can increase your chances of success and avoid common mistakes and pitfalls that may jeopardize your E-2 application.

Navigating Challenges

Even with the help of an immigration law consultation, you may still face some challenges and difficulties with your E-2 application.

Some of the common challenges that E-2 applicants may encounter are:

• Finding a suitable US business to invest in that meets the E-2 criteria and matches your interests and goals, such as an E-2 visa through a franchise or existing business
• Proving that your investment is substantial, at risk, and irrevocably committed to the US business
• Proving that you have the ability and intention to direct and develop the US business
• Proving that the US business is not marginal and will generate more than enough income to support you and your family
• Proving that you have the funds to support yourself and your family while in the US
• Proving that you have the intention to return to your home country after your E-2 status expires
• Dealing with delays, requests for evidence, or denials from the US consulate or the USCIS

To navigate these challenges, you need to be prepared, proactive, and persistent.

The best way to do this is to hire a competent immigration lawyer and follow these tips:

• Conduct thorough research and due diligence on the US business that you want to invest in, and make sure that it meets the E-2 criteria and has a viable business plan and financial projections
• Document and track every aspect of your investment, and provide clear and convincing evidence of your investment and your E-2 eligibility
• Highlight your qualifications, experience, and skills that demonstrate your ability and intention to direct and develop the US business.
• Show that the US business has a significant economic impact and will create jobs or provide services for US workers or consumers.
• Provide proof of your financial resources and your sources of income while in the US.
• Provide proof of your ties and connections to your home country that indicate your intention to return after your E-2 status expires.
• Respond to any delays, requests for evidence, or denials promptly and professionally, and provide additional or updated information or documents as needed

By following these tips, you can overcome the challenges and achieve your E-2 goals.

Schedule an Immigration Law Consultation Today

If you need help with your E-2 visa or E-2 change of status application, reach out to us at IBP Immigration Law. We’re a team of experienced and dedicated immigration lawyers who specialize in E-2 matters. We can assist you with preparing and filing your E-2 application, and representing and advocating for you throughout the process.

Whether you need help with work visas for the US, marriage-based immigration process, green card application assistance, or any other immigration matters, we’re here to help.

Contact us today for an immigration law consultation, and let us help you achieve your American dream.