An E-2 visa is a great option for an entrepreneur who wants to start or purchase a business in the U.S. You can find out more about the E-2 visa requirements by clicking here.
Before a visa is issued, there are a number of set up activities that must be performed and an applicant can come to the U.S. on either Visa Waiver (ESTA) or a B-1 visa to perform these activities. You can find out more about permitted activities under a B-1 Visa by clicking here. In many cases the E-2 business may already exits (For example, the purchase of a business) or a start-up business may be operational while one is waiting for an E-2 interview at a Consulate. Recently, we answered the following set of questions for one of our E-2 Visa clients.
What are the rules regarding operating the business while waiting for your E2 visa to be approved? Can I operate the business while waiting for my E-2 visa to be approved? Are we permitted to work in the business until the E-2 visa has been approved? Can we hire employees to run the business if we do not have the visa yet? We have customers waiting to place orders, can I take the orders as I am not sure whether we are even allowed to operate at all until the E-2 visa has been approved?
First, you do not need an E-2 Visa (or any visa) to own a company that operates in the U.S. and you can even work for this company if you are not on U.S. soil. If you are in the U.S. on a valid visa (eg. B-1 Visa) you are still permitted to own the business and the business can be operational. This means you can take profit and distributions from the business also. You can also hire employees and independent contractors.
While you can own an E-2 business and it can be operational with employees, you cannot work there while on U.S. soil. Many of our client either hire contractors or employees to run the business while they are waiting for the E-2 visa approval, OR they can run the business while they are outside of the U.S. (to the extent that is possible). With an operational business you must always be careful while you are in the U.S. that you do not violate rules related to working without authorization.
Can the Denial of a Green card Petition Impact my E-2 visa? If I apply for a green card and my application is denied, will this impact my E-2 visa renewal?
Many investors that are in the U.S on an E-2 visa may have the opportunity to apply for a green card. For example, let us say that the spouse of an E-2 investor gets sponsored by his company for a green card under the EB-3 category. Let us also say that the green card approval is not certain, and the EB-3 case may be a risky one. Looking at another example, let us say an investor has the ability to apply for a green card under the EB-1 category but the case is a risky one. In both of these cases, the key question comes up of whether or not a green card denial will impact an E-2 visa renewal.
You can find out more about the E-2 visa renewal process by clicking here.
A denied green card application (For example, EB-2 or EB-3) could impact an E-2 renewal depending at what stage it was denied. The issue is that when you file a green card petition you have signaled to the Government that you may have immigrant intent. The closer you get to the green card approval (see the 3 steps for the PERM process by clicking here) the more chance of a possible impact. (For example, if you have filed an I-485 petition it may be worse, but if the company just filed the PERM and it was denied this likely would not have any impact.) The denial of a green card petition may not necessarily impact your renewal but it is certainly something any immigration lawyer would warn you about if an applicant wanted to renew an E-2 visa after a green card denial.
So how easy is it to convert from an E-2 visa to a Green Card?
Regarding the ability to get a green card while on an E-2 visa, the U.S. does not have non immigrant visas that “lead” to a green card the way some countries do. (eg. some countries have a point based system). In the U.S. if you are on an E-2 then you can apply for a green card if you qualify for a category. For example EB-1a is a green card category but has a VERY high bar as it requires extraordinary ability. Eb-2 and EB-3 are also categories but they require a job from a company (unless you are doing EB-2 NIW) and a long labor certification process. EB-5 is another option but requires a significant investment and is often a category that investors on an E-2 visa use to get a green card. You can find out more about the EB-5 visa by clicking here.
You can find out more information about converting from an E-2 to a green card by clicking on the post below. A key takeaway is that there is no silver bullet here. https://legalservicesincorporated.com/does-an-e-2-visa…/
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