What do you need to know when filing for an E2 visa renewal or extension?
If your E2 visa is expiring soon or you simply want to learn and prepare ahead of time for when that time comes, it is important to know that once the expiration date on your visa comes due, you need to renew or extend the E2 visa if you want to continue to live and work in the United States. In order to extend your E2 visa you must file for renewal prior to the time of expiration of your visa as stated in your passport. Please keep in mind that you must also remain compliant and renew your E-2 status every 2 years as stated in the I-94 record.
However, as you will see in this article there are situations where you must file for an E2 investor visa renewal or extension even though your visa is still valid in order to renew your E2 status, and this is increasingly the case due to COVID-19 and the restrictions on travel.
The E2 visas are granted initially for a certain amount of time depending on your country of citizenship and the strength of the business model and can range from anywhere between 3 months to 5 years maximum. Occasionally, the US Embassies abroad issue the initial E2 visa for less than the maximum period allowed because the E2 small businesses can be volatile. However, if the business is successful, the US Embassies abroad renew the E2 visa for the maximum amount of time. This is for example the case with the UK where the initial E2 visa is generally issued for 3 years (maximum period is 5 years) and if the business succeeds then the E2 visa is renewed for 5 years.
Where should you file for renewal or extension your E2 visa?
When your visa is expiring, you can file for renewal or extension of your visa at the US Embassies and Consulates abroad or directly with the USCIS if you are in the US.
In the case that you have a valid E2 visa which is not expiring and you are in the US and cannot leave the country to obtain automatic 2-year readmission on E2 status due to Coronavirus, the restrictions on travel, the closure of the US Embassies and Consulates abroad or for any other reason, you must file for renewal or extension directly with USCIS as if you are filing a new E2 application.
The E2 visa can be renewed at the US Embassy or Consulate abroad or directly with USCIS.
If you are in the US and you do not intend to leave and your E2 visa is expiring, you can file for renewal or extension directly with USCIS no more than 6 months prior to the expiration date. If USCIS approves your E2 application for renewal, then you can be granted an additional 2-years. Similarly, you can file subsequent applications with USCIS and renew your E-2 status every 2-years indefinitely. However, it is important to keep in mind that if your E2 status is renewed through USCIS, once you leave the US for pleasure or business, you cannot reenter without a valid E2 visa (unexpired). In this case, once you leave the US you must plan accordingly because you must apply for renewal of the E2 visa at a US Embassy or Consulate abroad and go through the application and E2 interview to get a new E2 visa in your passport.
Likewise, due to CORONAVIRUS, the restrictions on travel or the closures of the US Embassies and Consulates abroad, if you are in the US with a valid E2 visa that is not expiring but your 2-year E2 status on your I-94 is expiring and you cannot leave the US and reenter prior to the expiration date, then you must file for renewal or extension of the E2 status directly with USCIS before the due date and no more than 6 months prior to expiration in order to remain in legal E2 status. The same applies if you are in the US with an E2 visa that is expiring soon and you cannot leave due to COVID-19 related issues or for other reasons; you must file for renewal or extension directly with USCIS.
Do you need E2 visa renewal or extension?
In such cases, the E2 application with USCIS for renewal or extension is similar to submitting a new E2 application with supporting documents and must include the required and recommended documentation discussed below.
The most widely used option to renew the E2 visa is with the US Embassies and Consulates abroad by filing for an E2 visa renewal together with all the supporting documents necessary for this type of visa. This is the preferred option among most people on E2 status because once the E2 visa is renewed they can travel in and out of the US without restrictions. Even more, if the E2 business is successful, the US Consulates and Embassies issue the visa for the maximum time permitted which for certain countries means 5 years. The consular processing is different from filing the renewal with USCIS because a USCIS E2 extension is not valid after the person leaves the US and in order to reenter, you must file the E2 renewal with a US Consulate to obtain a new visa.
When filing for renewal abroad the better route is to apply at the same US Consulate or Embassy where you first obtained your E2 visa because the specific Consulate has all the required information and documents on hand. However, it is possible to apply for renewal at a different US Embassy and Consulate than for your initial application, but you should first check in with them about their process and eligibility for E2 renewals. Please keep in mind that while the E2 renewal applications are reviewed according to the same legal requirements regardless of the US Embassy, some Consulates can require different information or have a different application processes and E2 processing times.
What to do to get a successful E2 renewal or extension?
Whether you file your E2 application for renewal or extension with the USCIS or directly with the US Consulate or Embassy abroad, the filing is similar to your initial E2 visa package but must emphasize and cover certain aspects discussed below in order to be successful. You also need to keep in mind that some US Consulate or Embassies abroad have a simplified process for E2 visa renewals or extensions and require certain documents and for this reason it is recommended that before filing you review the guidelines of your US Consulate or Embassy abroad.
The most important information for a successful E2 renewal or extension includes:
1. Jobs. Create jobs and hire US workers
One of the most important requirements for the E2 visa and your initial visa application is that E2 business hires US employees.
The business plan submitted with your initial E2 applications describes the hiring plan and what jobs and when are going to be created over a period of few years. If you have followed through with your hiring plans and you have employed US workers according to your business plan, then you can show that you have successfully met the requirements for the E2 renewal or extension. If, however, you have fallen short of your business plan and hired less US workers than initially projected, then you can still argue that you have successfully met the requirements for renewal or extension. However, it is also important to show how the business remains viable and what are the future hiring plans.
If you were not able to hire any employees and your business has been in existence for a couple of years, you need to include with your application a detailed explanation as to why you did not meet the hiring requirements, the circumstances surrounding your business activity, and what you will do to remedy the situation. The amount of detail and explanation you need to include depends also on how long the business has been in existence. If you have been managing the business on an E2 visa for 5 years then you have more explaining to do if you did not hire any US workers than someone who only managed the business for 1 year before having to renew the E2 visa.
Additionally, if you intend to find a buyer and sell your business or you have already found a buyer and he or she is in the process of securing financing, then you can request an E2 renewal or extension to allow you to find a suitable buyer or obtain financing for the business while you continue managing it.
2. Provide Updated Financials and E2 Business Plan
If you were not able to meet the financial targets included with your initial E2 business plan and you did not hire any US workers, then you must include a new business plan that contains revised financial data and describes a new hiring plan to employ US workers in the future.
In addition to the hiring plan, the immigration officer looks at the other components of the business plan including the revenue targets, the marketing plan and any other changes to your business compared to your initial E2 business plan.
Revenue targets. The immigration officer reviews whether you have met your revenue targets as stated in the original E2 business plan. In order to show the company’s revenue over the years, you must include with your E2 renewal application the US federal tax returns for the business for each year since the E2 was issued. These must be copies of the signed and dated forms submitted to the IRS and must not be state tax returns. In addition, you must include copies of profit and loss statements for the current year and previous calendar years and all
W-2, 1099s for independent contractors and/or payroll invoices. If US federal tax returns are not available, especially for the year you file for E2 renewal or extension (current year), then you can include copies of bank statements, profit and loss statements, audited financial statements and any other financial documents to prove the company’s financial performance.
Regarding revenue targets, it is important to show the immigration officer that you have met your revenue targets or even surpassed them, but if this is not the case, then you must show that the company is viable and will be able to develop and hire US workers in the future. However, if the company is operating at a loss or the business model appears not to be viable, you must explain in detail why is the company experiencing losses or why the business model is viable and what is the company going to do to ensure profitability and a viable business model that can sustain jobs for US workers over time.
However, even if the company is not profitable, it is important that you also highlight in your E2 renewal application the successes the company has, including ability to pay vendors and contractors, hire part-time US employees, secure partnerships and financing, invest and purchase additional businesses for strategic acquisitions or otherwise.
Successful implementation of marketing and sales plans. The immigration officer reviews whether you have implemented your marketing and sales plans as indicated in the initial E2 business plan and their success over time. It is important to show how your marketing and sales plan was implemented and the results it generated. In addition, you must also include any future marketing and sales plan to improve the company’s performance as well as any changes to marketing and sales strategy, if applicable. Finally, if you implemented the marketing and sales plan but it proved to be unsuccessful, you must show the immigration officer how you will change your marketing and sales effort to achieve the revenue goals for the company.
For a successful E2 visa renewal or extension, you must include evidence to show implementation and any success of your marketing and sales plan including customer reviews, publications about the company in trade journals and other reputable media in the field of operation, company ratings, advertisements, participation at trade events and expos in the field and others.
However, if you did not implement the marketing and sales plan included in your initial E2 visa application, then you must include an explanation as to why you did not follow though with the plan and what you will do differently moving forward to ensure the success of the E2 company.
Changes in business operations. The immigration officer reviews the E2 renewal or extension application and business plan to see if there are any changes in the company’s operations.
If you operate the same or similar business for which you were initially approved the E2 visa, then you can submit evidence of any new investments, if any, in the business. If you do not operate the same or similar business for which you were approved and there are substantial changes to the business and the operations of the E2 company, then it is important to contact an experienced E2 visa lawyer as soon as possible to assist you with your application as you may be considered a first-time investor.
3. Provide Evidence of Real and Operating Business
The immigration officer reviews the renewal or extension application to determine whether the E2 business continues to be operating and is progression rather than being stagnant.
For a successful E2 visa renewal, you must show that the company is real and operating and include evidence that shows:
- Updated local, state and/or federal licenses
- Updated annual reports
- Customer lists, contacts and other similar documents
- Updated marketing and promotional materials, including updated website, domain registration, social media pages, advertisements and others
- Updated commercial lease
- Any future contracts and proof of payments and others
4. Provide Updated Ownership Structure
With the E2 renewal or extension you must include evidence that shows the current ownership structure of the company and such structure must remain compliant with E2 ownership requirements in terms of citizenship of the E2 business. The company must be at least 50% owned by a treaty country national with the same nationality as the E2 visa holder.
For a successful E2 visa renewal, you must show that the company is owned by a treaty country national and include evidence such as:
- Articles of Incorporation or Organization or other similar documents
- Bylaws, Share Certificates, Operating Agreement or other documents to confirm ownership
The E2 renewal and extension is a complex process whether filed with USCIS or a US Consulate or Embassy abroad and involves a number of steps together with disclosure of extensive information, documents and detailed explanations and representations.
For a successful E2 visa renewal or extension, contact our experienced E2 business visas lawyers at Malescu Law in Miami, Florida, to assist you with your application and the intricacies of business immigration visas.
Malescu Law P.A. – Business & Immigration Lawyers