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Can E-2 dependents get an E-2 visa when the investor changes status?

By October 26, 2022October 16th, 2023E-2 Visa
A happy family of 3 sitting on a couch in their home

The E-2 investor visa is a great visa for nationals of treaty countries who want to start a business in the United States. E-2 visa holders can bring their spouses and any unmarried children under 21 to the U.S. as E-2 dependents. This post discusses a recent change to the Foreign Affairs Manual (FAM) that is helpful for E-2 dependents.

E-2 investors can either apply for a visa at a U.S. Consulate abroad, or they can apply to change their status within the U.S. with U.S. Citizenship & Immigration Services (USCIS). One big difference between these two options is that if you change status, you cannot easily travel outside the U.S. Once you leave the U.S. you would be required to go to a U.S. Consulate abroad and submit a new E-2 application. The Consulate is not required to defer to the approval from USCIS. You can read more about the pros and cons of filing at a Consulate or applying to change status here.

One issue that can arise is when the E-2 investor changed status in the U.S. and their spouse and children are still abroad. Although there was an argument that the spouse and children should be granted an E-2 visa, there was no clear statement in the section of the FAM that discusses the rules for E visas. A recent change to the FAM has clarified that in the situation where the principal applicant changed status, the spouse and children are eligible to receive E-2 visas to allow them to join the principal applicant in the U.S.

Specifically, the FAM now states the following (emphasis added in the relevant section):

“Spouses and Children:  To establish qualification for E classification as the spouse or child of an E applicant, you may accept whatever reasonable evidence is persuasive to establish the required qualifying relationship.  The presentation of a certified copy of a marriage or birth certificate is not mandatory if you are otherwise satisfied that the necessary relationship exists.  The spouse and children of an E visa applicant receive the same visa validity and number of entries, and are required to pay the same reciprocity fee, if applicable, as the principal applicant.  If the principal applicant’s visa is limited in validity/entries by special processing, the visa for the derivatives should be limited and not exceed the period of validity or number of entries of the principal, except where the principal has changed status domestically and has not been issued a visa – at which time the visa should be issued based on the reciprocity arrangement that exists with the country of the principal applicant.”

This change is good news for E-2 dependents, as it makes it very clear that they are eligible to apply for an E-2 visa abroad if the principal has an approved change of status with U.S. Citizenship & Immigration Services. Whereas previously the dependents may have had to come to the U.S. on a B-1 or B-2 visa and change status in the U.S. (a process which can take several months), they are now able to apply directly for the E-2 visa at a U.S. Consulate. The ability to get the E-2 visa at a U.S. Consulate will allow them to enter the U.S. already in E-2 status and will allow the E-2 spouse to work as soon as they enter.

Updated on 10/5/2023 based on Changes to the Foreign Affairs Manual:

Since this post was drafted, the Foreign Affairs Manual (FAM) has been updated.  The specific references to dependents obtaining a visa based on the Primary’s change of status approval have been removed from the E-2 part of the FAM.  As such, the E-2 section is now silent regarding whether a dependent can obtain a visa from a Consulate when the primary has obtained an E-2 change of status approval.  There is another section of the FAM that supports dependents being able to obtain a visa in this scenario.  (Please see below). While this section implies that obtaining a visa for the dependents is possible, we have not seen it function regularly in practice.  There is another big change.  If a dependent has a passport from a Treaty country, the visa can only be issued based on the reciprocity of the dependent’s country. 

9 FAM 402.1-6 Issuance of Nonimmigrant Visas (NIV) to Spouses and/or Children When Principal is in Status but Has No Visa

Derivative beneficiaries are entitled to apply for visas to follow and/or join principals who are maintaining status in the United States, even when the principal was never issued a visa in the classification being sought by the dependent.  Take, for instance, a world-class soccer player, who changes their status from F-1 to O-1.  The spouse and/or children are entitled to apply for nonimmigrant O-3 visas.  Typical documentation for establishing entitlement to visas in such an instance might include marriage and birth certificates for the spouse and dependent(s), a copy of the principal beneficiary’s approval notice, and any Form I-797, Notice of Action notices relating to the dependents’ own change of status filings.  Another example would be a foreign national who entered the United States on a B-1 visa and subsequently changed status to F-1.  The spouse and/or child of the F-1 would be entitled to seek F-2 visas.  In such cases, the dependent would need to present a properly endorsed Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status – for Academic and Language Students, as evidence that the principal is enrolled, or will be enrolled within 60 days, in a full course of study or is in approved practical training.

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