Applying for E-2 Visa from the United States through Change of Status

Feb 21, 2021

In this article we will discuss how to apply for E-2 Visa from within the United States through change of status versus applying from your country through consular processing. Whether or not applying for E-2 Visa through change of status could be a rather difficult decision. Always consult with an experienced E-2 Visa attorney that will guide you through the process and help you explore your options. Applying for E-2 visas is a complicated process, and any mistake can cost you the opportunity you are seeking.

What Is An E-2 Investor Visa?

The purpose of an E-2 visa is to encourage financial investment in the United States by allowing individuals who invest a substantial amount of money in commercial enterprises in the United States to live and work in this country. E-2 Visas are issued for three to five year periods, and can be renewed indefinitely as long as the requirements are still in place. For additional information regarding the E-2 Visa and the required investment, you can read our articles Everything you need to know about the E-2 Investor Visa and E-2 Visa Investment Requirements.

Beneficiaries of E-2 Visa status may bring along their spouse and minor children, and some types of employees that will be working for the  U.S. company. The law limits these visas to investments that are “substantial” and not merely “marginal in nature.” Even though most of the E-2 Visas are processed by the United States consulate in the beneficiary’s country of origin, there are situations where applying from the United States through a change in status is a better choice. That’s why it’s important to work with an experienced E-2 visa attorney who can help you decide which method is best suited to your particular situation.

Applying For An E-2 Visa – The Consular Process

E-2 Investor Visas, like E-1 Trader Visas, are usually processed by U.S. Consulates in the benficiary’s country of origin. To apply, you must file a voluminous application and then you must appear in person to attend the interview. For more information on what to expect and how to get ready for the E-2 Visa interview, you may read our article E-2 Visa Interview Basic Requirements.

Consular interviews may be tough and not always end in the way you were expecting. All E-2 Visa rules are subject to interpretation and often different consulates interpret the same rules in different ways. This is one of the reasons why sometimes foreign nationals already living in the United States prefer to apply for E-2 Visa directly in the United States through change of status.

Applying For E-2 Visa Through Change Of Status

In order to apply for an E-2 visa through change (or adjustment) of status, you must have lawful immigration status in the United States at the time of your application. That means that you must have entered the country on a non-immigrant visa (such as B-1 or B-2, L, H1B, J etc) and when you apply your visa should not be expired.

E-2 Visa applications through adjustment of status should be filed with the USCIS (United States Citizenship and Immigration Services) by filing Form 1-129 and other related documents. Before considering pursuing this route, it’s important to be aware of a major drawback to using this method – the E-2 visa you obtain won’t be valid if you leave the United States.

Therefore, once you exit the United States, you will not be able to come back to the country on the same E-2 Visa, but you will be required to file a brand-new E-2 Visa application at the U.S Consulate in your home country. This is because United States consulates abroad are not bound by USCIS determinations. The issue with this option is that U.S. consulates abroad will review your application from scratch and may reject it even though USCIS had previously approved it.

Also, while U.S. consulates abroad typically adjudicate the E-2 Visa for periods from 3 to 5 years, USCIS can only grant E-2 Visa status for a maximum period of two years.

Advantages of applying for E-2 Visa through change of status

The foregoing notwithstanding, there are three main reasons to consider applying for an E-2 visa through a change of status:

  1. Stay in the Country: First, you will not be required to leave the United States. This option comes with a great value, as you will save a substantial amount of money while your enterprise is still growing and you will not have to discontinue your business affairs while attending the interview somewhere else outside the U.S.
  2. Speed: If you need the E-2 Visa very quickly to clinch a deal, you can apply with premium processing in as little as 15 days. This option, of course, is not free, but sometimes might be worth the expense. U.S. consulates, on the contrary, don’t offer expedited processing and can take up to five months to render their decision.
  3. Easier standards: Despite the fact that the law doesn’t specify a minimum amount of investment, consular officers abroad apply a “substantiality test” which usually results in rejecting applications for investments under $80,000. Decisions of consular officers are not appealable, essentially ruling out the consular process for investments less than $80,000. If your E-2 Visa application gets denied, you can only re file the application showing different requirements, such a larger investment. The USCIS Service Center in the United States must also apply the “substantiality test,” but will generally adjudicate E-2 Visa based on investments as low as $50,000, sometimes even less. Also, if your E-2 Visa application is denied, such decision can be appealed before the U.S Federal Courts.

Which Way Of Applying For An E-2 Visa To The United States Is Better For Me?

There is a great deal of nuance in applying for E-2 Treaty Investor visas, and your business venture may depend on the success of your application. That’s why it’s important to work with an experienced E-2 visa attorney that can review the entirety of your circumstances and help you choose the best way to proceed. Once you’ve chosen to pursue either the consular or change of status approach, it’s important that all of the forms required are properly prepared and submitted in a timely manner. E-2visaworld.com is a consulting firm devoted exclusively to providing the best E-2 Visa attorneys to people seeking E-1 and E-2 Visas. Get started on your E-2 Visa process filling out the Eligibility Survey or our contact form to schedule a free consultation to discuss how we can help you get your E-2 Investor Visa.

 

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