Achieving an E-2 visa approval through U.S. Citizenship & Immigration Services (USCIS) is a major milestone for foreign investors. However, obtaining a change of status domestically does not automatically grant the ability to travel internationally. To re-enter the United States after traveling abroad, investors must undergo an E-2 visa consular filing. Understanding the distinct differences between USCIS adjudications and consular processing is essential for protecting your business and your immigration status.
Understanding E-2 Visa Requirements
E-2 Visa Investment and Operational Criteria
The E-2 visa allows treaty country nationals to start or purchase a business in the U.S. and come to the U.S. to develop and direct that business. The E-2 investor must make a substantial investment to start or purchase the company in the U.S., and the investment must be at risk and fully committed to the enterprise.
The company must be real and operating and demonstrate that it will be able to hire U.S. workers. The applicant must also intend to depart the U.S. if or when the status ends.
USCIS vs. Consular Processing for E-2 Visas
Changing Status vs. Consular Processing
There are two ways to gain E-2 investor status. One option is to change status in the U.S. by filing a petition with U.S. Citizenship & Immigration Services (USCIS). This option is available to people who are already in the U.S. in a valid status that allows for a change of status.
Approvals can be issued for two years, however, a USCIS approval does not give the investor the ability to travel internationally. In order to travel, the E-2 investor will need to submit a petition to a U.S. Consulate and get an E-2 visa stamp.
Consular Independence in E-2 Adjudications
Notably, the US Consulate is not required to defer to the USCIS approval when adjudicating the E-2 visa application. This is different from petition-based visas, such as the H-1B, L-1 or O-1, where USCIS must first approve the petition and then the consular officer will defer to the USCIS approval. For these petition-based cases (H-1B, L-1, O-1, etc.), the consular officer has a more limited role and the focus of the visa interview is on the applicant’s credibility and ensuring that the applicant can verify that the facts in the petition are true.
In contrast, when an E-2 investor has received a USCIS approval, this has very little impact on the consular officer’s decision to grant or deny the E-2 visa. For E-2 cases, the Consulate will adjudicate the case as a brand-new petition and may completely disregard the USCIS approval in their analysis.
Additionally, Consulates often take a different approach than USCIS with E-2 adjudications. For example, USCIS focuses a lot of attention on the details of the source and trail of investment funds, while Consulates often take a more holistic approach to this documentation. However, USCIS is often more accepting of lower investment amounts, while many Consulates want to see higher investments.
Tips for Consular Filings After an E-2 Approval with USCIS
Given the fact that an E-2 consular filing is treated as a brand-new petition, E-2 investors who receive USCIS approval and plan to apply for the E-2 visa stamp at the Consulate should plan carefully and use the tips below to help them present a strong application at the Consulate.
Adjust Your Petition to Consulate Norms
Understand the norms at the Consulate you are applying at and adjust your E-2 petition if needed. As noted above, USCIS may approach adjudications differently than the Consulate.
One key difference is that USCIS is often more accepting of smaller investment amounts, particularly for service-based businesses. If your E-2 was approved with a very low investment amount (e.g. $30,000), it is a good idea to increase the investment amount before submitting the E-2 petition to the Consulate.
Strategize the Timing of Your Petition
Consider the timing of your petition. If you have received an E-2 approval with USCIS, that means you are already in the U.S. running the business. Businesses may struggle in the first few years of operations and while this is normal, you may want to wait to apply at a Consulate until you can show business tax returns with strong revenue and profits and proof of hiring employees.
Alternately, if you are applying at a Consulate with a fast review time, you could consider submitting the E-2 petition to the Consulate immediately after receiving your USCIS approval, which will allow you to present the company as a start-up, as opposed to having to explain away poor business performance in the first year or two of operations. However, if you apply for the E-2 at a Consulate and you are denied, you cannot use the USCIS approval to re-enter the U.S. on E-2 status.
Create a Reliable Backup Plan
Have a backup plan. Some E-2 investors go to the Consulate immediately after the USCIS approval while others may wait years to go to the Consulate. In either situation, the E-2 investor is taking a risk in departing the U.S. to apply for the E-2 at a Consulate, as they now own a business in the U.S. and will face difficulties if they cannot return to the U.S. in E-2 status.
Since there is no way to guarantee approval at the Consulate, the E-2 investor should create a backup plan before leaving the U.S. that accounts for how the business will continue to operate if the E-2 investor is denied at the Consulate. It is important to note that if the E-2 visa is denied, the applicant will no longer be able to use ESTA and even if they have a B-1 / B-2 visa, re-entering the U.S. may be complicated if the CBP officer has concerns that the applicant plans to come and work for the E-2 business.
Navigating Your E-2 Consular Filing with Experienced Counsel
Scott Legal has extensive experience with the E-2 visa process and we have worked with many investors who have been approved with USCIS and later applied for the E-2 visa at a Consulate. If you are interested in an E-2 visa and need support and guidance on your options and next steps, contact our office today.
