An E-2 visa is a great visa option for someone who wants to purchase or start a business in the U.S.. The visa requires an investment of as low as $50,000 and the E-2 investor should ultimately plan on hiring U.S. workers. A full list of the E-2 visa requirements can be obtained by clicking here.
When an E-2 visa is approved, the investor is only permitted to work at the company he/she founded or purchased and the company should perform the activities that were specified when the application was submitted. At times though, a business owner may want to expand or change the E-2 business and the question often arises of what the investor must do in this situation.
If a business change is significant, one option for the E-2 investor is to ask for an approval for this change in business activities at the Consulate. This process involves emailing the Consulate directly to ask what their procedure is, as they may all differ. Based on past requests, some consulates just ask petitioners to send in evidence of the new business (eg. New activities, business plan), and based on that evidence they approve or deny the change. Depending on the changes, a consulate could ask you to refile your E-2 application. One thing to keep in mind is that this request is only needed if the business change is substantial. For example, if you have an E-2 visa approved for a restaurant and then you expand the business to add a bar, it is unlikely that your business has changed enough to warrant a reclassification of business activities. If you were approved as a restaurant and then decided to become a wedding photographer, this would clearly represent a substantial change in business.
The other possibility when your business changes is to file with USCIS in the United States. This is also only done when there has been a “substantive change” in the business. A substantive change is defined by USCIS as follows: “The Service will deem there to have been a substantive change necessitating the filing of a new Form I-129 application in cases where there has been a fundamental change in the employing entity’s basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed.” The process to seek approval of a substantive change through USCIS is to file Form I-129 (with appropriate explanation and supporting documentation) along with the E-1/E-2 Classification Supplement and the fee of $325.
The key take away point is that the change in business activities must be substantive and when considering this you should look at the new aspect of your business to determine if you can make a rational link to your current business. If so, then asking the government for an amendment may not be required. You should also keep this article in mind when drafting your business plan and describing your business when you first submit your E-2 application. For example, your business plan may have a key business activity (for example, wedding photography, but then may also describe additional services that you may offer, eg, wedding consultant, nutrition planning for weddings, etc.). If you consider future possibilities when you submit your application, this may eliminate the need to go back to the government and get additional approvals.
For more practical or legal advice contact Scott Legal, P.C.. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support. Call 212-223-2964 or email firstname.lastname@example.org for a consultation.
Ian E. Scott is a Harvard Law School Graduate, lawyer and author of Law School Lowdown: Secrets of Success from the Application Process to Landing Your First Job. Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and currently runs his own law firm Scott Legal, P.C. specializing in Immigration Law & New Business set-up.