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Can I have an E-2 petition pending with USCIS and Consulate at the same time?

By September 8, 2022E-2 Visa, Immigration
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An E-2 visa is a visa classification that is available for foreign nationals who wish to live in the U.S. to develop and direct the operations of their business. The business can be large or small and an E-2 visa is a great visa option for those who want to start a business.

You can either apply for an E-2 visa at a U.S. Consulate abroad or you can apply for a change of status through USCIS if you are already in the U.S. on some other visa. But the question that sometimes arises is if you can have a petition pending with both the USCIS and at a U.S. Consulate at the same time.

Example 1

You are currently in the U.S. on an E-2 status and your I-94 is expiring in 4 weeks. You filed an extension of E-2 status petition with USCIS and you also want to apply for an E-2 visa at a Consulate in your home country (you did the initial petition through USCIS as well and you never applied for an E2 visa at a Consulate before). The question is: Can you apply for an E-2 visa at a Consulate if your extension petition is currently pending with USCIS?

The answer is yes. You can have an E-2 extension of status petition pending at USCIS and at a Consulate at the same time. Many people do it this way as if their I-94 form is expiring, the extension of status petition in the U.S. allow them to stay in the U.S., while they await their interview at the U.S. Consulate abroad.

There are few things you should keep in mind:

  • You can stay in the U.S. while your extension of status petition is pending, and you can keep working for the E2 company for up to 240 days while the extension petition is pending. If the petition is denied for any reason, you will need to leave the U.S.
  • If you leave the U.S. while the extension of status petitions is pending, it can still be approved (it will not be automatically denied just because you leave the U.S.).
  • You can always pay for Premium Processing for your E-2 petition and you will know a decision in 15 days (currently the fee for premium processing is $2,500).
  • Just because USCIS approves your petition does not mean that the Consulate will automatically approve it (or vice versa). Both USIS and Consulate will make their own decision whether you qualify for the E2.

Example 2

You are currently in the U.S. on a B-1 status . You filed a change of status petition from B-1 to E-2 and you are wondering whether you can also apply for an E-2 visa at the Consulate abroad. The answer is yes. You can have an E-2 change of status petition and Consulate petition pending at the same time.

There are few things you should keep in mind though:

  • You can stay in the U.S. while your change of status petition is pending, but you cannot work for the E-2 company until the petition is actually approved by USCIS. Unless you pay for a Premium Processing of the petition, it will take USCIS several months to make a decision on the case.
  • You can always pay for Premium processing for your E-2 petition and you will know a decision in 15 days (currently the fee for premium processing is $2,500).
  • If you leave the U.S. while the change of status petitions is pending, it will automatically be denied by USCIS, so you should discuss any international travel with an immigration attorney.
  • Again, just because USCIS approves your petition does not mean that the Consulate will automatically approve it (or vice versa). Both USIS and Consulate will make their own decision whether you qualify for the E2.

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