When Applying for an E-2 Visa, Should You Apply For A Change of Status Or For the Visa at a U.S. Consulate?

An E-2 visa is a visa that is available for entrepreneurs, investors and business owners who wish to live in the U.S. to develop and direct the operations of a business.  The visa is perfect for those who want to start a business and one can obtain the visa with an investment amount as low as $50,000.  The full set of requirements for an E-2 visa are outlined in an article you can access by clicking here.

One key question that must be determined as a first step is where to file the application.  That is, should one file while in the U.S. or at a U.S. Consulate.  Unlike many other visas, this question takes on added significance as the decision of where to file has significant implications.  First let us describe the two options.

Applying for an E-2 Visa While in the U.S. (Change of Status)

If you are in the U.S. on a visa (eg. H-1B or F-1), you can file a petition to change status to an E-2 Visa with the United States Citizen and Immigration Service (USCIS).  The I-129 form you file is the same form that you file for many other non-immigrant visas (eg. H-1B) and you would also complete the E-2 visa supplement.  This petition is a document intensive application and you must provide documentation to support all of the elements outlined in the E-2 visa requirements.   If your petition is granted, it is best to think of yourself as “in E-2 Status” rather than having an E-2 “visa” as the change of status does NOT permit you to reenter the country the way an E-2 visa would.  E-2 status is typically granted for a 2-year period.  Finally, if you have dependents that are also in the U.S. that are dependants on your visa (eg. H-4) where you want to change their status, you must also file an I-539.

Applying for an E-2 Visa at a Consulate (An E-2 Visa)

If you are outside of the U.S., you must file a DS-160 and this long application is completed online.  You must also complete a DS-156E supplement.  The exact instructions of how you apply for the visa are usually outlined on the website of the relevant consulate and the documentation that you must provide is generally the same as the documentation you would provide if you were filing in the U.S..  That being said, the consulate may impose some additional specific procedural requirements.  The visas are typically granted from between 2 & 5 years and you are permitted to leave and enter the U.S. whenever you like.  If you have dependents, separate DS-160 applications must be completed for them.

A Few Things To Consider When Deciding:

  • If you have been granted a change of status and leave the U.S., you must qualify for an E-visa at a consulate before reentering. This does NOT mean that you simply show the consulate your I-797 approval notice like with most visas but rather you must reapply for the E-2 from scratch and submit all supporting documentation as if the application were to be a new one.  If your application is approved, an E-2 Visa is added to your passport and you will be able to leave and reenter the U.S. at will.
  • If you are in E-2 status as a result of a change in status, it will not speed up adjudication or otherwise expedite your E-visa application at a consulate.  In fact, many consulates believe that these adjudications should exclusively be done at consulates and as such completely discount any USCIS findings.  There are cases where visas that were approved by USCIS were denied when the applicant applied or sought a renewal at a consulate.
  • Consular E Visas can be issued for 5 years where USCIS will only issue E-2 status for 2 years.  If a business is a start-up business and a change of status is issued for 2 years, the marginality requirement of an E-2 visa will primarily be assessed based on the business plan.  Also, later if you changed status and leave the country, as outlined above  you will have to apply for the visa at the consulate and in this situation the consulate will have 2 years worth of actual business data that could be used against you if your business has not taken off as fast as you thought it would.  This problem could be avoided if a 5-year E-2 visa was issued as you may have more time to get the business up and running.
  • Even though the standard for E-2 visas is the same worldwide, some consulates are easier than others to get E-2 visa approvals.  For example, even though there is no set amount of money that an investor must spend, some consulates will not approve E-2 visas unless over $100,000 is spent.  For others the threshold amount is even higher.  Also, most attorneys agree that USCIS applies the standards fairly consistently (in a relative sense) and some argue that USCIS approval is easier than consular approval.  At the end of the day though, a business owner is going to have to apply at a consulate at some point.

Which Option Should You Select?

The decision really depends on your personal situation but in most cases we advise applicants to apply at the consulate.  This is primarily because of the need to reapply if the applicant leaves the country and the fact that the visa can usually be issued for a longer period.  This is a tricky area though so you should sit down with a qualified immigration attorney to discuss your options.

If you are considering an E-2 or EB-5 visa, contact Scott Legal, P.C..  For more information on this and other immigration visas click here.  You can also call us at 212-223-2964 or email us at iscott@legalservicesincorporated.com.

Also, click here for your free White Paper that summarizes the top 10 Immigration Questions and Answers.

12 Comments

  1. Ismael Fernandez October 25, 2013 1:45 pm

    Very interesting,

    I was not aware of such big differences in the application process between USCIS and US Dept. of State. We agree that consulates often have more requirements than the USCIS. For instance, we have been required to provide a US based CPA letter certifying that the financials contained in the business plan were done in agreement with US accounting practices.

    As far as the investment amount, we have seen USCIS approving E-2 visas for our clients with as low as $40,000 invested. I’m sure this would never happen in a consulate.

    What intrigues me is, USCIS likes to see a substantial amount of Capital at Risk in the US. Is this also the case when applying through a consulate as the investor is not even in the US and therefore mobility is limited?

    Thank You,

    Ismael

    Reply
    • IanScott October 25, 2013 1:58 pm

      I agree…40K is low for a consulate but I would be fine filing that with USCIS (although it would be a tough application). I think the at risk amount is similar at the consulate but I guess every consulate is different. It is very linked with the Investment amount as it is a question of how much skin the person has in the game. If the consulate or USCIS thinks the investment amount is sufficient, then they will turn to the at risk amount and see if that is fine. I would say that that analysis would be pretty similar where the investment amount analysis differs.

      Reply
  2. Venetia Rose December 7, 2013 10:11 am

    I was not aware of the differences in the application process of USCIS and the US Dept.of the State.This article has been of very informative as my brother is planning to apply for E-2 visa.

    Reply
  3. Sanad Sghier April 30, 2016 7:25 pm

    if im apply for an e2 visa from the US, does that mean if i leave i cant reenter?

    Reply
    • IanScott May 1, 2016 2:27 pm

      Thank you very much for contacting us and we welcome the opportunity to help you with your legal needs.

      At your earliest convenience, we would be happy to offer you a consultation with one of our lawyers. If after the consultation you decide to hire us to work on your matter and your billing is greater than $2,500, our $250 one hour consultation fee will be waived and the amount will be applied towards your future bill. (As such, the consultation would be free).

      While some legal questions appear straight forward, most do not have a yes or no answer and a proper answer requires a review of the facts and circumstances as well as an application of legal knowledge. Moreover, almost all questions require follow up and additional analysis that is best done during a consultation.

      We look forward to working with you and please contact us if you would like to set up a consultation. For your ease of reference, I have included information below to set up a consultation.

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      Reply
  4. karine May 17, 2016 6:10 pm

    Hi,

    I now live in the US under a E-2 visa. (Canadian citizenship) I’m filing for a renewal right now and aware of the DS-156 but since I’m applying from inside the US, does it mean I also have to complete a DS160 for each applicant?

    Thanks
    Karine

    Reply
    • IanScott May 17, 2016 6:13 pm

      We would be happy to answer your legal questions during a one hour paid consultation. Please let us know if you would like to set something up.
      Kind regards,

      Reply
  5. Yalin Kilic August 22, 2016 11:29 pm

    Does USCIS always ask for a CPA approval for accounts? We have just submitted a file with reports by a regular accountant.
    Do you think we have to send them a letter and add a report by a CPA? We applied for a change of status to E2, benefice. is in US. Thank you.

    Yalin

    Reply
    • IanScott August 25, 2016 4:59 am

      Thank you for contacting us. The answer really depends. They can ask for anything and what they ask for depends on the facts and circumstances.

      Kind regards,

      Reply
  6. Vitto August 25, 2016 5:04 pm

    Thank you for the article. Very interesting. I have a question: I am an italian citizen currently under H4 valid status in the U.S. I am considering applying for an E2 change of status at USCIS here in the U.S. Since my wife has a valid H1b but she has no intention of changing her status will I be able to travel abroad and come back to the U.S as H4 visa?
    Thank you

    Reply

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