We have a lot of clients who are currently in the U.S. on an E-2 status and either their E-2 visa or their I-94 is expiring soon. Due to many travel restrictions that are still in place and due to the fact that many Consulates are currently only open for emergency appointments/are substantially backlogged, many clients are considering filing an E-2 extension with USCIS. This blog post will analyze what to do if your E-2 visa or I-94 is expiring soon and will explain in more detail what governs your stay in the U.S. Your I-94 is expiring soon, but your E-2 visa is not One important thing to keep in mind is that regardless of when your E-2 visa expires, the expiration date on the most recent I-94 Form marks the end of your lawful admission to the U.S. Each time you enter the U.S. on your E-2 visa, you should be granted 2 years in E-2 status by the CBP officer. It is also extremely important to check your I-94 every time you enter the U.S. to make sure you were actually admitted for 2 years and to reach out to CBP to get the I-94 corrected if you were not. You can check when your I-94 expires on this website. Please see our blog post that discusses the difference between visa and status when you click here. Example: You are a national of the UK and you entered the U.S. on February 15, 2019 and your I-94 expires on February 14, 2021. Your E-2 visa expires on June 1, 2022. As mentioned above, the I-94 governs your stay in the U.S. and you are permitted to stay in the U.S. on your E-2 status until February 14, 2021 (the date when your I-94 expires), and not until June 1, 2022 (when your E-2 visa expires). You have the following options how to stay in the U.S. past February 14, 2021:
- You can leave the U.S. and re-enter the U.S. anytime before your E-2 visa expires (June 1, 2022), but you have to leave the U.S. on or before February 14, 2021 when your I-94 expires. As mentioned above, every time you enter the U.S., you should be granted 2 years on an E-2 status. Due to the fact that the travel bans are still in place for people arriving to the U.S. from the Schengen countries and the UK and Ireland, you may want to travel to a country that is closer to the U.S. (e.g. Mexico, Bahamas), re-enter the U.S., and get 2 years in E-2 status. It is extremely important though to check what are the current entry requirements to a particular country (e.g. negative Covid test) and whether you need to quarantine, before flying there to make sure you will be allowed to enter that country. You could travel to UK as well, but you would need to get a National Interest Exception approved before coming back to the U.S. Consular/CBP officers have a complete discretion to grant/deny the NIE, so you should consult this with an immigration attorney before you leave the U.S.
- Another option would be to file an extension with USCIS. We would recommend this option generally only if you your E-2 visa already expired as well (see below), as otherwise it is generally easier to just leave the U.S., re-enter, and get 2 more years in the U.S. on the E-2 status rather than filing E-2 extension with USCIS.
Your I-94 is expiring soon, and you never had an E-2 visa/your E-2 visa expired Example You are a national of France. Your E-2 visa expired on December 1, 2020, and your I-94 is expiring on February 1, 2021. You would like to renew your E-2 visa, but you would also like to stay in the U.S. past February 1, 2021 to run your E-2 business. In this scenario, we would recommend:
- Filing a renewal application with the Consulate, and
- Because you also want to stay in the U.S. past February 2021, you will have to file an extension of E-2 status application with USCIS. If you submit the E-2 renewal application to the Consulate in early January 2021, you will most likely not get an appointment by February 2021 and would need to get your status extended with USCIS if you want to state in the U.S. past February 1, 2021. Your extension of status petition must be received by USCIS before your I-94 expires. If the petition is received by USCIS before your E-2 status expires, you will also qualify for an automatic 240 day extension – this means that even though your extension of status petition is pending with the USCIS, you can keep working for the E-2 company for up to 240 days (but if USCIS denies the petition for any reason, you have to stop working immediately).
If this is your first time submitting your E-2 petition to USCIS, you should consult it with an immigration attorney as USCSIS is extremely focused for example on the source & trail of funds section and the investment sections of the E-2 application. Your E-2 visa is expiring soon, but your I-94 is not Example Your E-2 visa is expiring on February 1, 2021 but you just recently entered the U.S. on June 1, 2020 and your I-94 is valid until May 31, 2022. In this case, you are allowed to stay in the U.S. until May 31, 2022. However, if you leave the U.S. and you will want to re-enter the U.S. at anytime after your E-2 visa expires (February 1, 2021), you will need to apply and get a new E-2 visa at a U.S. Consulate. Filing an E-2 extension with USCIS If you will be filing an extension application with USCIS, then you will need to submit your E-2 petition and the following forms:
- Form I-129 for the E-2 investor (if you want to pay a Premium Processing fee of $2,500, you can also submit form I-907 and USCIS will decide your case in 15 business days)
- Form I-539/I-539A for any dependents (and if your spouse would like to apply for a work authorization, you should also submit Form I-765)
As mentioned above, if you want to file an extension of status petition with USCIS, you should consult it with an experienced immigration attorney.
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