Last Updated on July 14, 2024 by Anda Malescu
This article examines the options for the children of E1 and E2 visa holders to stay in the US after they turn 21 years old.
What is an E2 visa and who can qualify for it?
The E-2 visa is a nonimmigrant visa for investors from treaty countries who want to do business in the United States. To qualify, the investor must invest a substantial sum of money and put the capital at risk by either starting a new business, purchasing or investing in an existing business in the United States.
In addition to the primary investor, E2 businesses can apply for E-2 visas for their employees. The E2 employees must be from the same treaty country as the owners of the company, and be seeking employment in an executive or supervisory capacity or possess specialized skills that are essential to the E2 company’s operations.
Regardless if the E2 visa holder is an investor or an employee, he or she can bring their spouse and unmarried children under 21 to the US with E2 visa. Children are not authorized to work but can study either in high school or university/college in the United States on an E2 visa.
Can my child stay on my E2 visa after turning 21?
No. After a child turns 21, they are considered an adult for immigration purposes and cannot continue to maintain an E2 dependent status. This means that the E2 dependent status ends when children turn 21, regardless of their expiration date on I-94 record or E2 visa stamp.
If they want to stay in the United States beyond that age, they will need to qualify for a different visa category on their own.
To address the issue of children of E2 visa holders aging out and having to leave the US while the parents remain in the US we recommend consulting with an experienced immigration lawyer well in advance of your child’s 21st birthday.
It is our experience that in order to ensure a smooth transition, certain solutions for children turning 21 require planning and steps to be taken a year or more in advance. We have had success stories with last minute applications, but this is highly dependent on individual circumstances and we recommend discussing visa options with an immigration attorney well before your children age out of E1 or E2 visa.
Options for children aging out of E2 visa
Below we examine the most popular options for visa or green card (permanent residency) programs for children that are aging out of the E2 visa.
1. Children Aging Out: Apply for F-1 Student Visa
Since many children of E2 visa holders already attend a university or college in the US before they turn 21, applying for an F-1 student visa is one of the best options.
The F-1 Visa (Academic Student) allows you to enter the United States as a full-time student at college, university, seminary, conservatory, high school or in a language training program as long as the education institution is properly accredited.
The F-1 visa also allows the student to remain in the US for one year after graduating from a college or university for an OPT (Optional Practical Training) to work in their field of study. It is important to note that students in STEM (Science, Technology, Engineering and Mathematics) majors have a three year OPT instead of one year for all other majors.
2. Apply for E-2 Investor Visa
Another option for a child aging out of E2 visa is to become an E2 investor themselves and apply for E2 visa. The process and requirements are the same as for any other E2 investor visa.
If the parent provides the investment capital it is important to note that it must come from a parent’s personal bank account to the child’s personal bank account and to the account of the E2 business.
The challenge here is proving that the child can direct and develop an E2 business at a young age. Still, with careful planning and a strong business plan, it is not out of the question.
3. Apply for E-2 Employee Visa
Applying for E2 employee visa is also a viable option for ageing out E2 children. The children can seek employment either at the parent’s E2 company or another E2 company owned by a citizen of the same treaty country as the child.
Because an E2 child likely will not have much, if any, managerial experience, it may be possible to focus on specialized knowledge employee role for the E2. Consulting an experienced E2 visa lawyer can help explore the best fit for your child’s qualifications and the specific E2 company.
4. Apply for TN Visa (Canada & Mexico only)
If the child is a citizen of Canada or Mexico they can apply for TN visa.
The TN visa is a work visa, available only for certain professions as determined by the US-Mexico-Canada Agreement (USMCA). The child will need a job offer from a US employer but the process is simpler than the H-1B visa.
An important distinction is also that the TN visa is not subject to a quota limitation like the H-1B and does not require a Labor Condition Application (LCA).
For citizens of Canada the process is even simpler with TN visa applicants because they can apply directly at the CBP office (Customs and Border Protection) at a port of entry, including international airports in Canada or land border.
The biggest downside to TN visa is that most professions allowed require either bachelor’s degree or a combination of degree and experience.
5. Children Aging Out of E2 visa: Apply for EB-5 green card for whole family
One way to address the issue of children aging out of E2 visa is to apply for permanent residency (green card) before the children turn 21 or get married.
The EB-5 program is available to those with substantial financial means. EB-5 allows the investor and their spouse and children under the age of 21 to become permanent residents (green card holders) in exchange for making a minimum investment into a US commercial enterprise or Regional Center project.
Currently, the minimum investment is $1,050,000, or $800,000 for areas with high unemployment or rural areas.
Rural EB-5 Regional Center projects receive expedited processing, taking an average of 3 to 6 months to be approved, while standard non-priority EB-5 projects can take 2 to 4 years.
Because now EB-5 applicants can submit both the immigrant petition and adjustment of status application at the same time, children that are about to turn 21 may be able to secure a spot on their parents’ green card application if USCIS receives the applications before their 21st birthday.
6. Children Aging Out: Apply for EB-1C green card for whole family
EB-1C green card is an attractive option for E2 investors or E2 spouses who own or co-own a business outside the US and who have held a managerial or executive position at that business for at least 1 year in the past 3 years or prior to obtaining the initial E2 visa.
The EB-1C visa is an employment-based green card for managers and executives of multinational companies. It allows companies with operations in the United States and at least one other country to transfer executives or managers from the foreign office to the office in the U.S. to develop the company’s operations in the United States.
The main advantage of the EB-1C is that it does not require the lengthy PERM process like EB-2 or EB-3. Additionally, for an extra fee, USCIS can process EB-1C petitions in 45 days.
This immigrant visa category is typically current which means that you can file for adjustment of status (if legally present in the US) concurrently with the EB-1C petition.
Alternatively, once approved, you can file for consular processing at a US embassy or consulate abroad, or adjustment of status if already legally present in the US.
Malescu Law can assist
These are some of the most viable options for children aging out of E1 and E2 visas. However, there may be other visa options available for E2 children turning 21 depending on individual circumstances. Some of these visas include L, O, E-3 and others.
If you need assistance from a highly competent US immigration lawyer to find a solution for your E-2 dependent children aging out contact us or schedule an appointment.
We serve individuals and companies throughout the United States across all 50 states, the District of Columbia and Puerto Rico.
Malescu Law P.A. – Business & Immigration Lawyers
