This article discusses everything you need to know about applying for the E2 visa while in the United States (change your status to E2 with USCIS). Before we delve into the specifics, let us step back and explore the key aspects of E2 visa.
What is E2 visa?
The E2 Visa is a nonimmigrant visa that allows foreign nationals from treaty countries to live and work in the United States based on an investment in a US business. With an E2 visa, investors and entrepreneurs can start or buy a business or franchise in the United States.
To qualify for E2 Visa, the investor must meet the following requirements:
- Be a national of an E2 treaty country.
- Have invested or be in the process of investing a substantial amount of capital in a business in the United States.
- Capital invested is placed at risk in the US business and is subject to loss if investment fails.
- Intend to develop and direct the US business in which he or she invests.
More on the requirements, eligibility and benefits, visit E2 visa. For Canadian citizens, visit E2 visa for Canadians to learn more.
Can I apply for E2 visa while already in US?
Yes, both investors and employees of E2 businesses can apply for E2 visa if they are already in US.
To apply for E2 visa while in the United States, you have two options:
- Change of status at USCIS, or
- E2 visa at US Consulate or Embassy abroad
Here, the focus is on applying for E2 visa through change of status at USCIS.
However, it is important to note that you can also apply for E2 visa at US Consulate or Embassy abroad while being in the United States. In other words, you can be in the United States at the time you apply for E2 visa at the US Consulate or Embassy abroad because there is no requirement that you need to be present in your country at the time of application.
As discussed above, to apply for E2 visa while in the US, you can choose one of two options – change of status at USCIS or E2 visa at US Embassy or consulate.
However, in certain circumstances, you may want to do a change of status to E2 at USCIS, and shortly thereafter apply for E2 visa at the US Consulate abroad. This is particularly advantageous if you are already in the United States, and you want to start working immediately.
Getting an E2 Visa through a US Consulate or Embassy
If you apply for E2 visa at the US Consulate or Embassy abroad, you must attend an E2 visa interview at the consulate. If you are approved, you receive an E2 visa stamp in your passport which allows you travel between the United States and other countries.
The E2 visa stamp is a physical stamp or sticker in your passport which serves as an entry document or an authorization to travel to the Unites States. Once you arrive in the United States, you present the E2 visa at the US Customs and Border Protection (CBP) where a CBP officer determines whether to admit you in the US or not.
Upon entry into the United States, the E2 visa stamp does not control your legal status. is not the controlling document for legal status. Instead, your legal status is controlled by the E2 status as recorded on your I-94 record.
Remember, a valid E2 visa is not required to maintain legal status in the United States, but it is a document that allows you to travel outside the United States and return during its validity. In fact, you can be in legal status in the United States with an expired E2 visa.
However, if you apply for E2 change of status while in United States, then you undergo a different process.
In this article we break down the process to apply for E2 visa through change of status while in the US.
Who can do an E2 change of status from US?
To be clear, not everyone can change status to E2 while in the United States.
First, if you are not a citizen of one of the E2 treaty countries, then you cannot pursue a change of status to E2 in the US. And second, even if you are a citizen of a treaty country, you may still not be able to change status in the United States.
There are many reasons why someone would want to change status, but we will not discuss them here. However, the bottom line is that certain applicants cannot change status to E2 even if they are citizens of E2 treaty countries and would like to.
So, who can apply for change of status to E2? The following individuals can apply for E2 change of status while in the US:
- Canadians travelling visa-free for business, touristic or other purposes
- Citizens of E2 treaty countries in the United States on a valid, unexpired visa such as B1/B2 visa, F1 visa and others
90-day rule
The 90-day rule is no longer a USCIS policy since July 2021. Therefore, the now defunct 90-day rule should not impact your change of status application.
It remains, however, a policy of the Department of State (DOS). The DOS clearly states that simply filing for a change of status is not in itself sufficient to support a presumption of misrepresentation under the 90-day rule.
However, the 90-day rule still provides a reasonable guideline for applicants whose intent has changed after entering the United States. Depending on your class of admission in the US, you may be able to change your status to E2 even if you have been in the United States for less than 90 days.
Who cannot change status to E2 in US?
- Travelers on ESTA (Visa Waiver Program)
- Dual citizens in the United States on a non-treaty passport
- Crew member (D nonimmigrant visa)
- In transit through the United States (C nonimmigrant visa)
- Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
- Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)
- J1 exchange visitor subject to foreign residence requirement without an approved J1 waiver
- J1 visa holder receiving graduate medical training without an approved special waiver
How to apply for E2 visa in US?
To apply for E2 change of status while in the United States, you must file Form I-129 with USCIS along with all supporting documents showing that you satisfy the E2 visa requirements.
The whole change of status process takes place in the United States, and you do not need to leave the US to change your status to E2. Moreover, you do not need to attend an E2 interview.
If USCIS approves your change of status application, you receive I-797 Approval Notice containing an updated I-94 record showing class of admission “E2”. The Approval Notice for E2 visa with the enclosed I-94 serves as proof of your legal status in the United States.
How long does it take to get an E2 visa from within US?
Changing your status to E2 visa from within the US can take anywhere from 15 days to 3 months, depending on the processing method you choose:
- Expedited processing. If you choose to pay an additional fee for premium processing through USCIS, you can receive a decision in as little as 15 days, provided that USCIS does not issue a Request for Further Evidence.
- Regular processing. Standard processing times can take up to 3 months.
Pros and Cons
Advantages
The advantages of changing status to E2 while in the United States are:
- Fast processing. USCIS has 15-days premium processing available, meaning that for an additional fee, you can receive a decision in 15 days. USCIS regular processing times vary from 1 to 3 months.
- No E2 visa interview. You do not need to attend an E2 interview.
- Convenience. You receive the change of status decision at your mailing address without having to travel anywhere. If approved, you can start managing the E2 business immediately.
Disadvantages
The disadvantages of applying for E2 visa while in the United States are:
- Travel restrictions. With a change of status at USCIS, you receive an E2 status which is not an E2 visa stamp. The E2 status allows you to stay in the United States to manage the business, but it is not an entry document or travel authorization that allows you to reenter the United States if you travel abroad. This means that if you travel abroad, you need to apply for an E2 visa at the US Consulate or Embassy abroad.
- Shorter validity. The validity period of your E2 obtained through a change of status is the US is typically two years. In contrast, E2 visas obtained at US Consulates or Embassies abroad can be issued with a validity period of up to five years, depending on the E2 treaty country.
- USCIS approvals are not binding on consulates. While USCIS approval for change of status to E2 is beneficial, it does not directly influence a future E2 visa application at a US Consulate or Embassy abroad. This means that if you have an approved E2 change of status at USCIS and you later apply for E2 visa at the US Consulate or Embassy, the consulate reviews the E2 application without giving weight to the USCIS approval. You must present an entire E2 visa application with all supporting documents again. However, a successful E2 change of status can still be advantageous. If you have already established and are actively running the E2 business with employees, this can have a positive impact on the Consulate’s decision to approve your E2 visa.
Malescu Law can assist
Considering applying for E2 visa while in US? Our US-based E2 visa lawyers can simplify the process for you.
We have successfully assisted investors, employees and their family members obtain an E2 visa though change of status.
If you want to obtain an E2 visa, contact us today or schedule a consultation.
We serve companies and individuals across all 50 states, the District of Columbia and Puerto Rico.
Malescu Law P.A. – Business & Immigration Lawyers
