The E-2 visa allows nationals of treaty countries to invest in and manage a business in the United States. As a nonimmigrant visa, it requires applicants to intend to leave the U.S. once their authorized stay ends. This is known as the intent to depart requirement. Although it is generally easy to meet, complications can arise if the applicant also has a green card petition pending.
Why Intent to Depart Is Required for the E-2 Visa
Unlike immigrant visas, which lead to permanent residency, the E-2 visa is a temporary visa that does not allow for dual intent. This means that, unlike other visa categories such as H-1B or L-1, E-2 visa holders must clearly indicate that they do not plan to stay in the U.S. permanently. When applying for or renewing the visa, applicants must affirm their intent to depart the United States once their E-2 status expires. This distinction is critical, as expressing an intent to remain in the U.S. indefinitely could lead to denial of the visa or entry at the border.
How to Show Intent to Depart
Fortunately, demonstrating intent to depart is relatively straightforward. E-2 visa holders are not required to own a home in their home country, nor must they show extensive ties to it. For example, selling a home abroad and moving to the United States does not violate the intent to depart requirement. In most cases, a simple signed statement declaring the applicant’s intention to leave the U.S. at the end of their E-2 status is sufficient. As long as the individual does not express a desire to adjust status or remain permanently, the burden of proof is minimal compared to other visa categories like the B-1/B-2.
Special Requirement for UK E-2 Visa Applicants
Treaty-Based Residency Obligation
Nationals of the United Kingdom face a unique requirement due to a long-standing treaty between the U.S. and the UK. Under this treaty, signed in 1815, E-2 applicants must demonstrate that they are currently residing in the UK. This requirement is not based on intent to depart, but rather on qualification under the terms of the treaty.
Documentation for UK Nationals
To meet this requirement, UK applicants must submit evidence of recent physical presence in the UK. Acceptable documentation may include tax records, lease agreements, utility bills, bank or credit card statements showing UK-based transactions, or school and employment records that confirm local residence. This requirement adds an additional step to the application process for UK nationals, separate from the standard E-2 criteria.
What Happens If You Have a Pending Green Card Application
Having a pending green card petition, such as a Form I-130, I-140, or I-526, can complicate an E-2 visa application or reentry into the United States. While it does not automatically disqualify you from holding E-2 status, it may raise concerns for consular officers or border agents about your true intent. For instance, if you disclose a pending immigrant petition on the DS-160 or during a border interview, it may be interpreted as inconsistent with the intent to depart.
To reduce risk, many applicants choose to renew their E-2 visa before filing any green card petition. Others, already in the United States, may prefer to apply for E-2 renewal through USCIS rather than going through a consulate, as this can sometimes reduce scrutiny. In cases where the green card petition is not expected to become current for several years, it may still be possible to convince immigration authorities that your immediate intent is to leave the country after your E-2 status ends.
Transitioning from an E-2 Visa to a Green Card
Although the E-2 visa does not lead directly to a green card, there are several pathways that allow E-2 visa holders to adjust status. If your business grows substantially and meets the investment and job creation requirements of the EB-5 program, you may be eligible to transition to an EB-5 green card. Alternatively, family-based sponsorship is a common route, especially for spouses of U.S. citizens or permanent residents.
Highly qualified E-2 holders may also consider employment-based categories such as the EB-1 or National Interest Waiver (NIW), particularly if their business activities contribute significantly to the U.S. economy or meet national priorities. In each of these cases, careful legal planning is necessary to avoid issues with the E-2 intent to depart requirement while navigating a transition to permanent residency.
Navigating the E-2 Visa with Long-Term Goals in Mind
The intent to depart requirement is a formal but manageable part of the E-2 visa process. A clear, honest declaration of nonimmigrant intent is usually sufficient to satisfy immigration authorities. However, factors such as a pending green card application or UK nationality may require additional planning and documentation. With a thoughtful strategy, E-2 visa holders can maintain compliance while also preparing for long-term immigration goals.
If you are an E-2 visa holder or planning to apply and want to explore long-term options like a green card, our experienced immigration attorneys can guide you every step of the way. From understanding intent to depart to planning your future transition, we provide tailored legal strategies to fit your goals. Schedule a consultation today to get started.
