How to apply for E-2 visa renewal or extension?
Generally, if you hold an E-2 investor visa, you can apply for renewal or extension at the time you reenter the US after travelling or directly with the USCIS.
For any reason including COVID-19 related travel restrictions, if you are in the US on an E-2 visa and your status is expiring, you can renew or extend your E-2 visa directly with USCIS to continue working for your E-2 business.
As a reminder, the E-2 investor visa is a temporary visa that allows a foreign individual, citizen of a treaty country, to live and work in the United States in exchange for investing capital in a US business and developing the enterprise.
Currently, there are approximately 80 E-2 treaty countries that have a treaty with the US and if you are a citizen of one of these countries, you may apply and get an E-2 investor visa.
The E-2 visa allows the principal applicant to bring their spouse and children to the US as well and the spouse can work in the US.
To check your E-2 status expiration date, you must consult your I-94 record which you can obtain by clicking here. Alternatively, if your initial E-2 application was filed with USCIS, then the date your status expires is listed on the I-797A Approval Notice.
The E-2 visa is generally issued for anywhere from 1 year to maximum 5 years, depending on the citizenship the E-2 applicant has. However, regardless of validity of the visa, the E-2 visa investor or E-2 employee, is granted initial status for 2 years which can be extended in increments of 2 years.
In practice this means that the visa can be issued for 5 years but the status is valid for only 2 years after which the stay can be extended for an additional 2 years and so on. It is important to remember that the status expiration date is different from visa expiration date.
For example, let us say that you are a citizen of Grenada and you are issued a 5-year E-2 visa at the US Consulate or Embassy from July 15, 2018 to July 15, 2023. Ten days later, on July 25, 2018, you enter the US and the customs officer admits you on an E-2 status for maximum 2 years until July 24, 2020 which is reflected in the I-94 record. Because your E-2 status expires July, 24, 2020 although your visa is valid until July 15, 2023, if you want to continue your business in the US as an E-2 investor or employee, you or your employer must extend or renew the E-2 status prior to July 24, 2020.
Generally, there are two ways to get an E-2 visa renewal or extension before the E-2 status expires depending on your travel schedule, preference and circumstances – automatic readmission on E-2 status or extension of E-2 stay with USCIS.
First, you can obtain an automatic 2-year readmission on E-2 status if you travel abroad and when you return to the US, the customs officer determines you are admitted and issues you a new I-94. For example, using the example above, you can leave on vacation or business outside the US prior to July 24, 2020 when your I-94 status expires and come back on August 25, 2020, then the CBP officer may readmit you on an E-2 status for another 2-years and issue a new I-94 expiring August 24, 2022.
Second, if you are in the US and you have no plans to travel abroad, you can apply directly with the USCIS to extend or renew your stay prior to the expiration of the E-2 status. In the case of E-2 employees, the employer can petition for extension or renewal of stay for the employee in E-2 status.
The application for an E-2 extension of stay or renewal must be filed directly with the USCIS no more than 6 months prior to the expiration of status and must be received before the status expires.
Once the application is filed with USCIS before the I-94 status expires, then you can continue working in E-2 status while the petition is pending for up to 240 days from the time the I-94 expires.
Keep in mind that the 240-day period does not apply to your spouse, E-2 dependent. The E-2 spouse filing for extension of employment authorization may receive automatic extension of EAD based on a timely filed EAD renewal of up to 540 days. Please see the latest USCIS updates here.
The spouse can only apply for the extension and work authorization once your E-2 extension or renewal was approved.
For example, as above, if the E-2 status expires on July 24, 2020, and you want to continue working in the US, then prior to July 24, 2020 you can submit an application with the USCIS to extend or renew your stay on E-2 status (for E-2 employees, the employers must file for extension or renewal of E-2). While your petition is pending with the USCIS you can continue working for up to 240 calendar days calculated from July 24, 2020.
Another important point is that for any of the extension or renewal of E-2 status options above, it does not matter where your original E-2 application was filed and approved – with the US Embassy and Consulate abroad or with USCIS. In other words whether you obtained your E-2 visa at a US Embassy and Consulate overseas or you obtained it through USCIS, you can still apply for extension or renewal of status.
Do you need E-2 visa renewal or extension?
Due to COVID-19 travel restrictions, you may not be able to travel abroad to extend or renew your E-2 visa status prior to expiration, and in this case you need to apply for extension of E-2 stay directly with USCIS.
The E-2 visa holders whose status expire soon while the COVID- 19 travel restrictions are still in place and cannot leave the US can extend or renew their status directly with USCIS. Once the petition for the extension or renewal is filed with USCIS, the foreign individuals on E-2 visa status can continue working for the business while the petition is pending even after their status expires.
However, keep in mind that travelling abroad to extent or renew your status is often times easier as applying directly with USCIS requires you to basically file an E-2 application with supporting documents and comments.
Because the timing and circumstances of each case can be different, we advise that you consult with an experienced E-2 Visa Business Immigration Lawyer when considering your options for extension or renewal.
As with the example, let us say that your E-2 status expires July 24, 2020 and at that time the US and other countries may continue travel restrictions due to COVID-19 or implement limited travel restrictions, then you need to consider your options in terms of which countries can you travel to and return to the US or apply for extension or renewal directly with USCIS.
If travel bans are lifted immediately before July 24, 2020, then you can travel abroad (even if only for 1 day) and return to the US to obtain automatic readmission in E-2 status. However, if the travel bans are not lifted prior to July 24, 2020, then you must file a petition with USCIS before your I-94 status expires to extend your E-2 status for another 2 years in order to be able to stay and work in the US.
It is important to understand that applying directly with USCIS includes an E-2 application with supporting documents similarly to the process involved when you initially obtain the E-2 visa.
Can an E-2 visa holder continue to work for the E-2 business after the E-2 visa expires?
Generally, an E-2 visa investor or employee can continue working for the E-2 company, as long as he or she continues to be in valid E-2 status and files for extension or renewal before the I-94 status expires.
In order for an E-2 investor or employee to be able to continue working for the E-2 business, he or she must be in the US in valid E-2 status. This means that the status must not have expired and if close to expiration, the foreign national has applied for extension or renewal of status before the expiration date listed in the I-94 record or on the I-797A Notice of Action.
Once the E-2 visa holder applies for extension or renewal of status (with USCIS) prior to the expiration date on the I-94 record or I-797A form, then he or she can continue working without interruption while the petition for extension is pending before the USCIS for up to 240 calendar days from date of the status expiration or until the USCIS has reached a decision, whichever occurs first.
If the USCIS approves the renewal or extension of the E-2 status, then the approval will relate back to the date the I-94 or I-797A expired, and your status while your application is pending will then be considered to have been lawful.
However, if the USCIS makes a final decision denying your application, you must immediately terminate working for the company and leave the US to avoid accruing unlawful presence. In addition, the visa in your passport granted in connection with your status becomes void.
Similarly, for the E-2 visa dependents, if the extension or renewal is denied their visa becomes void and their status terminates; the E-2 dependents must stop working and leave the US immediately.
Malescu Law can assist with E-2 visa renewal or extension
The E-2 extension or renewal can be a complex and daunting process especially with timing, change of circumstances and other considerations.
Our experienced E-2 visa immigration lawyer in Miami, Florida can assist you with renewing or extending your E-2 visa status and other business immigration needs for the USA. Contact us or book a consultation.
Malescu Law P.A. – Business & Immigration Lawyers