If you’re considering an E-2 investor visa, one of your most important decisions is choosing between applying through USCIS or a U.S. consulate. Both methods have distinct benefits and drawbacks that applicants should carefully evaluate. In this article, we’ll explore the eligibility criteria, processes, and strategic considerations of applying through USCIS or consulate to help you make the best decision for your E-2 investor visa application.
Who Can Apply at a Consulate or USCIS?
Almost all E-2 investor visa applicants can apply at a U.S. consulate in their home country, regardless of their current location. In contrast, USCIS applications are only possible for individuals already inside the United States in valid nonimmigrant status, such as students or visitors.
However, some applicants inside the U.S. are not eligible to apply through USCIS. These include individuals on the Visa Waiver Program (ESTA), J-1 visa holders subject to the two-year home residency requirement, individuals who have overstayed or violated visa terms, and those subject to entry bars. Such applicants must use the consulate application route.
Additionally, non-Canadian citizens residing in the U.S. may apply at the U.S. consulate in Toronto. Residency here refers to those legally in the U.S. on a nonimmigrant visa.
Key Differences Between USCIS and Consular Applications
Application Process at a U.S. Consulate
When applying through a consulate, the first step involves completing the DS-160 form online, followed by submitting supporting documents proving you meet E-2 investor visa requirements. The consulate will then schedule an in-person interview, where officers ask questions about the investor and the business. Generally, you’ll receive a decision at the interview, and if approved, an E-2 visa will be placed in your passport, allowing you entry into the U.S.
E-2 visas issued by consulates can be valid from three months to five years, depending on reciprocity agreements with your home country.
Application Process with USCIS
Applying through USCIS involves filing Form I-129, along with extensive supporting documentation. USCIS offers a premium processing option, providing a decision within 15 calendar days for an additional $2,500 fee. Unlike consular processing, no interview is required. Upon approval, USCIS grants E-2 status for a two-year period, renewable indefinitely as long as eligibility requirements are continuously met.
However, it’s important to note that USCIS grants status, not visas. If you leave the U.S., you’ll need to apply at a consulate abroad to re-enter.
Advantages of Applying at a U.S. Consulate
Ability to Travel Internationally
A significant advantage of consular applications is receiving an actual visa, which allows unlimited international travel during its validity. A USCIS approval only grants E-2 status within the U.S. If you depart, you’ll need to secure an E-2 visa from a consulate before returning.
Reduced Documentation on Source of Funds
Consulates typically require less detailed documentation tracing the source and transfer of investment funds. USCIS, by contrast, rigorously examines every dollar invested and may request detailed financial evidence.
Lower Fees
Consular fees are usually lower, often around $205 plus any reciprocity fees, whereas USCIS fees start at $460, plus $2,500 if premium processing is selected.
Longer Validity Period
Consulates can issue visas valid for up to five years, whereas USCIS approvals are limited to two years at a time. A longer visa duration provides startups critical time to establish and grow their business in line with their business plans.
Easier Maintenance of Status
When filing at a consulate, there’s no formal requirement to demonstrate that you’ve maintained lawful status inside the U.S. This reduces scrutiny compared to USCIS, which carefully examines your compliance with visa conditions.
Advantages of Applying through USCIS
Faster Processing with Premium Processing
The USCIS premium processing service can provide a decision within 15 days, which is ideal if you need immediate authorization to run your business.
Beneficial for Short Visa Reciprocity Countries
If your country’s E-2 visa reciprocity agreement offers short validity periods (e.g., three months), obtaining two-year status from USCIS could be advantageous, offering extended uninterrupted stay without needing to frequently renew the visa.
Consistent Adjudication Standards
USCIS is generally more predictable regarding required investment amounts and documentation expectations. Additionally, USCIS decisions can be appealed, providing procedural safeguards.
Beneficial for Applicants with Pending Green Card Applications
USCIS applications may be preferable if you have an ongoing green card process, as consular officers sometimes question applicants’ intent to depart the U.S. due to immigrant intent concerns.
Can You Apply Through USCIS and a Consulate?
Yes, and there can be strategic advantages to this approach. For instance, applying with USCIS first can allow immediate employment authorization upon approval. You could subsequently attend a consular interview to obtain the visa stamp necessary for international travel.
Making Your Decision: USCIS or Consulate?
When deciding between applying through USCIS or a consulate, consider:
- Your immediate travel plans
- How quickly you need to start working in the U.S.
- Availability of comprehensive financial documentation
- Reciprocity agreement validity period with your home country
- Current immigration status and compliance history
- Whether you have a pending immigrant application
Consulting an experienced immigration attorney is strongly advised to evaluate your individual situation and maximize your chance of approval.
Ready to Apply for an E-2 Visa?
At Scott Legal, P.C., we’ve helped hundreds of entrepreneurs successfully navigate the E-2 visa process through both USCIS and U.S. consulates worldwide. Every investor’s situation is unique, and the right application strategy can significantly impact the outcome. If you’re ready to take the next step toward building your business in the United States, schedule a consultation with one of our experienced immigration attorneys today. We’re here to guide you every step of the way.
