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E-2: Change of Status v. Consular Processing

By December 7, 2021E-2 Visa, Immigration
A woman considering her options

You can either apply for an E-2 status in the U.S. or an E-2 visa at a U.S. Consulate abroad. Each procedure has some advantages and disadvantages and this blog post will go over some of them (such as processing timelines or time for which the E-2 status or E-2 visa can be granted for).

Change of Status

  • This is a great option if you are currently in the U.S. on some other non-immigrant visa (e.g. B-1or F-1) and you want to apply for an E-2 status and stay in the U.S. while the E-2 change of status petition is pending. If you are outside the U.S., change of status is not an option for you.
  • If you are currently in the U.S. and you want to start running your business as soon as possible, change of status is a great option. You can pay for a Premium Processing(the fee is currently $2,500 and this means that USCIS will make a decision on your petition within 15 calendar days). As soon as the 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.
  • Nowadays, due to the backlogs created by COVID-19 pandemic, it may still take a while to get an E-2 visa interview at a U.S. Consulate abroad (it may take several months). Again, if you need to come to the U.S. and start managing your business as soon as possible, the Change of Status route may be a better option for you.
  • Change of Status is also a great option if your country’s reciprocity schedule only grants you the visa for several months. For example, nationals of Jordan can only get an E-2 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).
  • Additionally, our experience with USCIS has been that they are willing to approve petitions even with smaller investments amounts (that would normally not be approved at Consulates).
  • One disadvantage is that for USCIS change of status filings, we will need to include much more detailed documentation about the Source of the funds for the E-2 investment. Consulates generally do not focus on this as much as long as you are able to show that the money comes from a legitimate source, but USCIS does require an extremely detailed documentation about source of the funds and requires receipt and proof of payment for every single expenditure. Therefore, in situations when the investment was made a while ago and you cannot assemble all the necessary documents, applying at a Consulate may be a better option. We will also need to submit detailed documentation about your E-2 investment – we will need to submit and invoice and proof of payment for each expenditure you made.

Applying at a U.S. Consulate

  • The biggest advantage of applying at a U.S. Consulate is that if the petition is approved, you will be granted an E-2 visa. Visa is a document that allows you to travel in and out of the U.S. (on the other hand if you apply for a Change of status, you will only be granted an E-2 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 E2 visa eventually.
  • The current processing timelines are still quite long at most U.S. Consulates (you would most likely be waiting several months for your E-2 visa interview). That being said, some Consulates did speed up their operations and applicants at some Consulates are able to get a visa appointment within couple of weeks.
  • For the Source and Trail of Funds and investment section, you can submit much less documents than you would need to for a USCIS filing.
  • The filing fees for the Consular filing are much lower (you basically only have to pay the $205 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 premium processing fee (this is not mandatory, the fee is $2,500).

Can I file a Change of Status Petition and Consular Petition at the same time?

Yes, and we have done this for several clients especially during the COVID-19 pandemic. We would usually submit the Change of Status petition to USCIS and at the same time we would submit the Consular submission to the Consulate. This way, if you are already in the U.S., you could start working for the company as soon as USCIS approves the petition , and you could go and attend the E-2 visa appointment while the Consulate schedules the interview.

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