You initially entered the U.S. on a B-1 business visitor visa. You already have a U.S. entity set up and it has been operating for several years. The trade between the U.S. entity and clients in your home country has been ongoing for 5 years, each year the trade is around 2 million USD and you have around 20-25 clients each year. Up until now, you have not needed an E-1 visa as you lived abroad and you have just been occasionally coming on a B-1 visa. You only engaged in the permitted B-1 activities. You now want to stay and live in the U.S. and work for your E-1 entity. The question is: Can you change status from B-1 to E-1?
The answer is: yes. You can generally change status from one visa category to another, as long as you have been maintaining your status, have not violated your status, and your change of status petition is receive by USCIS before your I-94 expires.
In the scenario above, you would file an I-129 petition with USCIS. In the petition, you would have to show that you qualify for an E-1 status, meaning that you meet all the E-1 visa requirements. You could pay a Premium Processing Fee (currently $2,500) and this would mean USCIS would make a decision on your petition within 15 calendar days. If you do not pay the premium processing fee, you could stay in the U.S. as long as the change of status petition is pending, but you could only start working once the petition is approved by USCIS.
Please note that the USCIS approval does not grant you a visa. The USCIS approval will grant you an E-1 status for 2 years, but if you leave the U.S., you will need to apply for an E-1 visa at a Consulate.
Change of Status v. Consular Processing
As mentioned above, filing a change of status petition would only be possible if you are already in the U.S. on some other non-immigrant visa. Additionally, you cannot change status if you entered on an ESTA. The advantage of a change of status is that if you pay the premium processing, you could have a decision from USCIS within 15 calendar days and if it’s approved, you could start working for the company within 15 calendar days. Currently, it may be take several weeks or months to get an E-1 visa interview at a US Consulate abroad.
On the other hand, change of status approval only grants you status in the U.S. This means, that you can stay in the U.S. for up to 2 years, but if you leave, you will need to apply for an E-1 visa at a Consulate anyway (and you would have to submit more recent information about the trade to the Consulate, so it would not just be re-submitting the initial petition).
Each filing has its advantages and disadvantages and you should discuss your particular needs and situation with an experienced immigration attorney who can best advise you which approach is right for you.
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