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E2 Visa Requirements — Intent

E2 Visa Requirements — Intent

One of the fundamental E2 Visa Requirements:  Intent to Depart upon Termination of Status.  What does that mean?  Today we review the “intent” requirement in detail.  This article is the first in a series that dive deep into the E2 visa requirements.  Continue to check back for more articles explaining E2 visa requirements.

Intent may seem like a “softball” in the world of the E2 visa.  The basics are simple — you have to intend to leave the United States when your legal authorization in the US expires.  In the world of US immigration, this is known as “single intent.”  Said yet another way — you must not plan to stay as a permanent resident in the U.S.  This “single intent” for E2 visa holder is very confusing for all — E2 visa applicants, attorneys and even consular officers.  Why?  Because there is so much cross-information within the regulations.

What is the Required E2 Visa Intent?

If you have done your research on the E2 visa, you know that this visa is renewable indefinitely.  In fact, you can keep getting the E2 visa until the business no longer meets the requirements.  Some E2 investors have had an E2 visa for decades.  So, why does the legal language state that an E2 investor must not intent to live permanently in the United States?

On one hand, you have the following information:

  • Person applying for the E2 visa does not need to prove intent to be in the U.S. for a “specific temporary period of time.”
  • Person applying for E2 visa doesn’t need to have a residence in a foreign country.

This type of language makes it seem like the E2 visa holder doesn’t need specific intent to leave the U.S.  And, great news — you don’t have to have a house or any property whatsoever in your home country.  However, the next language confuses things a bit.

  • The applicant must prove that he or she has “unequivocal intent to depart the United States upon termination of E status.”

So which is it?  Do you need to prove you plan to stay?  Or do you need to prove that you will definitely leave?  It can best be explained this way:  you don’t have to prove you will stay, but you most prove that you will eventually leave.  When will you leave?  When your authorization ends.  In other words, you need to assure them that you won’t overstay the visa and that, in case you are able to adjust status, that you will not do that.  Instead you will return to the consulate to go through the immigrant process.

How Should You Prove Intent in a “Regular” Case?

In most cases, a simple statement or signed letter indicating that it is your intent to leave the US at the end of your status is usually enough to pass this requirement.

How Should You Prove Intent in a Potentially Problematic Case?

It’s possible that you have a factor or two that may not slip under the radar when it comes to the intent requirement.  The three most common cases that could cause issues:  green card petitions pending, DV lottery entry, history of overstaying visas in the U.S.

Green Card

If you have an immigrant petition pending, you may have to show more.  An immigrant petition is an I-130 or an I-140.  These petitions were filed by U.S. citizens — either your family members (in the case of I-130) or employers (in the case of I-140) — that ask the government to allow you to get a green card. In other words: this petition may, on its face, show that you have immigrant intent (intent to stay in the U.S.).

If you have a pending immigrant petition, the consular officer handing your E2 visa interview must be satisfied that your intent is “to depart the United States at the end of his/her authorized stay, and not stay in the United States to adjust status or otherwise remain in the United States.” So, in order to prove intent, you may need more than just a letter or statement.  It may be helpful to show them your previous relationship with the United States.  Maybe you have proof that you have been coming into and out of the U.S. for 20 years and have never overstayed a visa.  Or, although it is not required, maybe you have property or a business still running in your home country.  This could bolster your argument that you aren’t intending to stay in the U.S. beyond the E2 visa authorization.

DV Lottery

If you have entered the DV Lottery, it is possible that the consular officer knows this.  This could be most problematic between the time of entry into the lottery and the date that the lottery “winners” are notified.  And, there may be some issues if you have entered in the past.  It may seem to the consular officer that your plan is to live permanently in the United States. As with those with a pending immigrant petition, you may need to show more proof of your intent.

Overstaying your U.S. Visa

Overstaying a visa is always trouble.  Even if you have overstayed only a few days, you may need to explain yourself at the interview and have additional proof that your intent is to leave the U.S. when you no longer have authorization.  Your history will be an additional hurdle to overcome.

If any of these potentially harmful intent scenarios fit your case, please let your attorney know right away.  He or she will be able to guide you through the interview process and add any other documents to the application that may help your case.  Have a question about the E2 visa requirement intent?  Contact us.  We’ll be happy to discuss your options.