Under certain circumstances, E-2 visa holders may seek permanent status in the US and apply for a green card. It is important to note that the E-2 visa is not a “dual intent” visa, and the visa applicant must express an “unequivocal intent to return” to their home country when the E-2 visa expires. However, this does not preclude an E-2 visa holder from filing an adjustment of status petition should the applicant qualify for a green card under a certain category, such as the EB-5 program (investor green card), marriage to a US citizen, a family based green card petition, employment based green card petition (where a company sponsors you for a green card – EB-2 or EB-3), National Interest Waiver, or the EB-1 (extraordinary ability). It is crucial that you work with a qualified immigration attorney as you must carefully orchestrate the timing of each application to maintain valid immigration status. One unique feature of applying for a green card while in E-2 status is that the E-2 visa holder is required to complete a Form I-508, Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities.
What is the Form I-508?
When applying for a green card while in the U.S., form I-508 should be filed by persons who have nonimmigrant visas as a government official (A Visa), treaty trader or treaty investor (E Visa), or international organization representative (G Visa). This form is used to waive certain diplomatic rights, privileges, exemptions and immunities associated with their occupational status so that they may apply for a green card. Such privileges include any exemption (for diplomatic status) from paying U.S. income taxes on the salaries paid to them by their foreign governments or organizations. The form is also required for nonimmigrants on E status to waive any rights, privileges or exemptions granted by the relevant treaty that are not granted to other nonimmigrants. A separate I-508 is required for each individual adjustment applicant. Australian specialty occupation workers (E-3 nonimmigrants) have no special rights or privileges to waive and are therefore not required to submit a Form I-508.
When do I file the Form I-508 & What Should I Look Out for when Submitting the Form?
The Form I-508 should be completed and included along with the I-485 Application to adjust status and other relevant forms depending on the eligibility category of the application (i.e. I-130 for family based petitions, I-140 for employment based petitions, etc.). The I-508 requests a Personal Identification (PID) Number issued by the US Department of State. These numbers are issued to individuals who are registered as diplomats and are not issued to E-2 visa holders. The E2 applicant should enter “N/A” in the space provided. French foreign nationals who are receiving a salary from France are also required to complete a Form I-508F and must submit both the Form I508 and Form I-508F together with their adjustment petition.
It is important to keep in mind that the filing of an adjustment of status application and an I-508 may have a negative impact on E-2 renewals during the pendency of the green card process. As the E-2 visa is not a true ‘dual intent’ visa, the filing of an immigration petition and the I-508 waiving one rights under the relevant E treaty will make renewing your visa extremely difficult. The filing may also impact your ability to reenter the country on an E-2 visa. It is therefore important to carefully time your application to ensure you maintain your status. Lastly, like any I-485 application, be sure to obtain advanced parole before traveling outside of the US, as leaving the country will constitute automatic abandonment of the I-485 application.
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