Can a Dependent Apply for an E-2 Visa at a Consulate When the Primary Applicant Has Applied for a Change of Status in the U.S.?

If you are a dependent of a primary E-2 investor or E-2 employee who has applied for a change of status through USCIS, you may be wondering whether you can apply for your E-2 visa directly at a U.S. consulate. The general answer to this question is no. Here’s why this situation presents challenges and what you need to know.

In this scenario, the primary applicant has applied for a change of status to E-2 status while being in the United States on another status (such as F-1 student status or another temporary status). Meanwhile, the applicant’s family members (dependents) are outside of the United States and wish to obtain an E-2 visa based on the primary applicant’s approval notice.

While there is some regulatory language that might seem to support this approach, most U.S. consulates are not willing to issue E-2 visas to dependents in these circumstances. Here’s why:

• No Official E-2 Visa Granted: When a primary applicant applies for a change of status through USCIS, they receive an approval notice granting them E-2 status while remaining in the United States. However, this does not equate to an actual E-2 visa in their passport. Since a visa has not been issued to the primary applicant, consulates often view this status as an insufficient basis on which dependents may apply for their own E-2 visas.
• Risky and Uncertain Outcome: While there have been isolated cases where consulates have issued visas to dependents in such scenarios, this practice is inconsistent and carries significant risks. Most consulates are likely to reject the application, leading to delays and complications for the dependents trying to join the primary applicant in the U.S.

If you find yourself in this situation, it is generally recommended that the primary applicant leave the United States and attend a visa interview at a consulate to receive an E-2 visa stamp. Once the primary applicant has the visa, dependents can then apply for their own E-2 visas at the same or another consulate, using the principal applicant’s visa as the basis.

While it may seem plausible to use an E-2 change of status approval notice for dependent visa applications at a consulate, it is typically not a successful approach. Most consulates will not issue E-2 visas to dependents based on this approval alone, making it a risky practice.

If you’re considering applying for an E-2 visa or have questions about dependent visas, working with an experienced immigration attorney can help you understand your options and navigate the process effectively.

For more information or to discuss your specific case, schedule a consultation with us today.