Applying for an E2 visa in the United States

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Applying for an E2 visa in the United States

There are two ways to apply for the E2 visa – in the United States, with USCIS; or through the consulate or embassy in your home country, with the Department of State. The E2 visa is one of the few visas that don’t actually go through both processes. You will choose one or the other.

If you choose to go through the Department of State and do an interview in your home country (which is what we almost always recommend), and you are approved, you will get an E2 visa. A “visa” is a ticket to get into the United States.  You present the visa at the border (in most cases, the border is at the airport) and the officer will review it and almost always allow you to come into the country.  (Notice I say, “almost always.” The officer at the border has the option of turning you away even with a valid visa.  They don’t do this often, but it is a possibility.)  Your visa will be good for a number of months or years and good for a number of entries.  We go into the “ins and outs” of visas in another article.

If you choose to go through USCIS and change status while inside the United States, the process is a bit different. In this article we break down the process for changing your status to E2 while you are in the U.S.

Who should choose this option? 

Historically, we only recommend this for people who come through countries with inflexible visas.  Generally, these countries include Azerbaijan, Bahrain, Bangladesh, Congo, Egypt, Ethiopia, Jordan, Kyrgyzstan, Moldova, Oman and Ukraine. However, in 2020, it may be wise to change status in the U.S. if the consulate or embassy in your country is closed or has a long wait for E2 visa processing.  Additionally, if you don’t speak English, going through USCIS may be a good option for you, since there is no interview.

Who cannot choose this option?

Those entering the United States on visa waiver will not be able to change status while in the United States. It may be unwise to change status for those whose family is currently outside of the United States. In addition, if may not be wise to change status from a B2 to an E2. The B2 visa is a “tourist” visa, and there are recent incidents of denial of the change of status, since the person who entered on a B2 visa was violating the terms of that visa – engaging in business activities by setting up the E2 business.

Anyone who has been in the United States for less than 90 days should not change status. If you are in the United States and arrived less than 90 days ago, you should wait until you pass that threshold in order to send in your E2 application.

Finally, anyone who is a dual national and entered the U.S. on a non-treaty passport cannot change status.  (For example – Jane has an Indonesia passport and a Bangladesh passport. She enters the U.S. on a B1 visa in her Indonesia passport. After four months, Jane wants to change status to an E2 status.  She can’t do this even though she is a Bangladesh citizen because she entered the U.S. with the Indonesia passport.  Indonesia is not a treaty country. Jane must either leave the U.S. and return on her Bangladesh passport OR she must go to the U.S. consulate in Bangladesh and do an interview for the E2 visa.)

What are the advantages of this option?

The advantages of filing your E2 visa application through USCIS are speed and short-term convenience.  If you file through USCIS, you will be able to “premium process” the adjudication of the application for a fee. This means that you will receive an answer from USCIS in two to three weeks after applying. (If you choose not to “premium process” the application, it will take 3-6 months to receive an answer from USCIS.)

There is no interview when applying through USCIS. So, if you aren’t comfortable speaking English, or if you are completely intimidated by the process of an interview, filing through USCIS may be advantageous.

You don’t have to leave the United States. This may be convenient for you depending on where you live and the timing of your business and application. Some E2 visa investors are afraid to leave their businesses and go back to their home countries. (While staying now may be convenient, please read the “disadvantages” section, below, regarding long-term convenience.)

What are the disadvantages of this option?

If you apply through USCIS, you will typically be allowed a total of two years to stay in the United States and run your business. However, you will have no E2 visa, you will have only E2 status. This means that if you leave the United States for any reason, you will not be allowed back in unless you send documents to, and go to an interview at, the U.S. consulate or embassy in your home country to get the E2 visa. (Remember, you must have an E2 visa – a ticket to enter the U.S. – in order to come into the country and run your business.)

This process is confusing and not intuitive, so let’s look at a quick example.  Let’s say that Steve from Mexico wants to start a business in the U.S. He comes over on a B1 visa to look at a few options, find someone who can help with the accounting, speak with an attorney, etc.  He arrives on January 1, and by May 1, the entire business is set up and he’s ready to file.  He files with USCIS and premium processes the application.  By May 20, he has an answer – he has been approved for E2 status!

On October 12 of the same year, he finds out that his mother is very ill.  He needs to be with her in Mexico. He leaves (without consulting his attorney) to visit his mom.  After three weeks, she is much better, and he is ready to return to the U.S.  Unfortunately, Steve cannot come back and run his business.  He has no E2 visa, and the moment he left the United States, he has no E2 status.  This means that he needs to apply for the E2 visa with the Department of State – the U.S. consulate in Mexico. Since the consulate has never reviewed his application, he will need to show all documents.  He will also need to schedule an interview.

Steve immediately contacts his attorney from the E2 status application.  His attorney lets him know that she can put together the application, but she will need updated documents. (The last application happened in May.  It is now November.) Steve will wait in Mexico and have an employee get all of the documents to his attorney.  About two weeks later, the attorney sends the documents to Mexico for review.  The U.S. consulate in Mexico reviews for 10 weeks before scheduling an interview.  Steve is notified of the interview and must fly to Ciudad Juarez for the interview.  At the end of the interview, Steve is approved!  He returns home and receives the visa in the mail about one week later.  It’s February 20, and Steve finally can fly back to the U.S. and run his business. Since he now has an E2 visa (instead of E2 status), he will be able to travel internationally and return to the U.S. to work in his business for the next four years. (At the end of the four years, he will need to apply again at the U.S. consulate in Ciudad Juarez.)

How do I choose the best option for my situation?

The best way to choose is to speak with an E2 visa lawyer.  Your attorney will be able to give you an assessment and let you know which way is best for you.

Do you have questions about changing status or getting the E2 visa? Contact Angie anytime to discuss your E2 visa case.

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