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E-1: Change of status v. Consular Processing

By May 19, 2023E-1 Visa
A scale weighing two options

E-1 visa is a great visa for treaty traders who engage in substantial international trade between the U.S. and their home country. The E-1 visa can be granted for up to 5 years, depending on your country of nationality.

There are two ways how you could obtain an E-1 status in the U.S./E-1 visa. This blog post will summarize some advantages and disadvantages of each approach.

Change of Status with USCIS

  • This is a good option if you are currently in the U.S. on some other non-immigrant visa (e.g. B-1) and you want to apply for an E-1 status and stay in the U.S. while the E-1 change of status petition is pending. If you are outside the U.S., change of status is not an option for you, and you would need to apply at a Consulate. Please note that a change of status is not possible if you entered on an ESTA. Please note that if you entered the U.S. as a B-1 business visitor, you should also be very careful as the activities you are permitted to engage in in the U.S. while on a B-1 visa are limited.
  • The biggest advantage of changing your status with USCIS is that you can have a decision from USCIS (Approval, Denial, or Request for Evidence) in 15 calendar days if you decide to pay for a Premium Processing service (the fee is currently $2,500). As soon as the E-1 petition is approved, you can start working for your E-2 company immediately.
  • Even if you do not pay for the Premium Processing, as long as you file the change of status petition before your current status expires (before your I-94 form expires) , you would be able to stay in the U.S. (but not work) as long as the change of status petition is pending. The current processing time is several months, but you can also always inter-file the premium processing request later if you decide that you want to know the decision as soon as possible.
  • Change of Status is also a great option if your country’s reciprocity schedule only grants you the visa for several months or if your country’s reciprocity fee is extremely high (e.g. nationals of Australia would need to pay a reciprocity fee of $3,574 per person). Regarding the reciprocity period: for example, nationals of Jordan can only get an E-1 visa for 3 months, but if they file a change of status petition and it’s approved, it will be approved for 2 years. This means, that they can stay in the US for 2 years based on the approval (but if they leave, they would need to get a visa to come back). For nationals of Jordan, it would definitely make sense to file an initial change of status petition rather than going to a Consulate, especially if they don’t need to travel internationally.
  • If you decide to do Premium processing and you also have dependents, the USCIS filing fees may be higher than the visa fees that you have to pay at a Consulate (although this is not always the case, especially if your country has a high reciprocity fee you would need to pay at a Consulate).
  • You may be required to submit much more documentation for USCIS filing than you would have to submit for a Consular filing. USCIS petitions have no page limit so USCIS generally wants to see more documentation. On the other hand, U.S. Consulates generally have a page limit for E visa applications).

Applying at a Consulate

  • The biggest advantage of applying at a U.S. Consulate is that if the petition is approved, you will be granted an E-1 visa, which will allow you to travel in and out of the U.S. (as mentioned above, if you apply for a Change of status, you will only be granted an E-1 status: this status allows you to stay in the U.S. for up to 2 years, but the minute you leave the U.S., you will need to apply for an E-2 visa to re-enter). Therefore, filing a change of status petition is generally only a temporary solution for most applicants, and most applicants will want to get an E-1 visa eventually.
  • Although the visa processing timelines improved significantly at most Consulates, depending on where you will be applying for the E-1 visa, you may still wait for an interview for several months.
  • The filing fees for the Consular filing are generally much lower (you basically only have to pay the $315 visa fee per person). If you are filing a USCIS filing, you need to pay the I-129 filing fee (currently $460), I-539 filing fee ($370), and if you want a quick decision the premium processing fee (this is not mandatory, the fee is $2,500). Nationals of some countries don’t have to pay any reciprocity fee, but nationals of some countries have to pay high reciprocity fee in which case it would be more costly to file at a Consulate.
  • Consulates generally have very clear instructions as to what documents they want to see for the E1 application and usually have a page limit for the E-1 visa petitions. We still recommend that you bring additional documents to the interview.

Please see our blog post that discusses some Major differences between the E-1 and E-2 visa here.

Please see our blog post on What business is good for an E-1 visa here.

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