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Can I apply for an E-2 visa for my Dependents if I Changed Status in the U.S.? Can my Family apply for an E-2 visa at the Consulate?

By July 18, 2019October 16th, 2023E-2 Visa, Investor Visas
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When in the U.S., it may be possible to apply to change status to E-2 status.  (Eg. moving from an F-1 to E-2) If an applicant changes status in the U.S. and has family members abroad, the question comes up as to whether the family can get a Visa at the Consulate.

Most immigration practitioner would say that the clear answer to this question is No. That is, that it is not possible for family members to get an E-2 visa at a Consulate if the primary applicant only has a change of status.

Recently though, I met an immigration practitioner that has done this successfully twice.  In addition, the following description in the regulations that Consular officers use to adjudicate petitions support that this is possible:

Derivative beneficiaries are entitled to apply for visas to follow and/or join principals who are maintaining status in the United States, even when the principal was never issued a visa in the classification being sought by the dependent.  Take, for instance, a world-class soccer player, who changes his or her status from F-1 to O-1.  The spouse and/or children are entitled to apply for nonimmigrant O-3 visas.  Typical documentation for establishing entitlement to visas in such an instance might include marriage and birth certificates for the spouse and dependent(s), a copy of the principal beneficiary’s approval notice, and any Form I-797, Notice of Action notices relating to the dependents’ own change of status filings. 

 It should be noted that the two examples cited in the FAM are not E-2 visa examples (and E-2 visas at times have different rules – eg. you cannot get a visa stamp the same way that you can with an H-1B after an I-797 approval but rather the E-2 visa petition is adjudicated at the Consulate from scratch) and Scott Legal, P.C. would be reluctant to send family members to the Consulate in this instance.  That being said, it could be an option.

Updated on 10/5/2023 based on Changes to the Foreign Affairs Manual:

Since this post was drafted, the Foreign Affairs Manual (FAM) has been updated.  The specific references to dependents obtaining a visa based on the Primary’s change of status approval have been removed from the E-2 part of the FAM.  As such, the E-2 section is now silent regarding whether a dependent can obtain a visa from a Consulate when the primary has obtained an E-2 change of status approval.  There is another section of the FAM that supports dependents being able to obtain a visa in this scenario.  (Please see below). While this section implies that obtaining a visa for the dependents is possible, we have not seen it function regularly in practice.  There is another big change.  If a dependent has a passport from a Treaty country, the visa can only be issued based on the reciprocity of the dependent’s country. 

9 FAM 402.1-6 Issuance of Nonimmigrant Visas (NIV) to Spouses and/or Children When Principal is in Status but Has No Visa

Derivative beneficiaries are entitled to apply for visas to follow and/or join principals who are maintaining status in the United States, even when the principal was never issued a visa in the classification being sought by the dependent.  Take, for instance, a world-class soccer player, who changes their status from F-1 to O-1.  The spouse and/or children are entitled to apply for nonimmigrant O-3 visas.  Typical documentation for establishing entitlement to visas in such an instance might include marriage and birth certificates for the spouse and dependent(s), a copy of the principal beneficiary’s approval notice, and any Form I-797, Notice of Action notices relating to the dependents’ own change of status filings.  Another example would be a foreign national who entered the United States on a B-1 visa and subsequently changed status to F-1.  The spouse and/or child of the F-1 would be entitled to seek F-2 visas.  In such cases, the dependent would need to present a properly endorsed Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status – for Academic and Language Students, as evidence that the principal is enrolled, or will be enrolled within 60 days, in a full course of study or is in approved practical training.

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