This is a very common misconception that stems from not realizing that a “visa” and “status” are two different things in U.S. immigration law. Even if your E-2 visa is valid for 5 years, for each visit to the U.S., an E-2 status holder is only allowed to stay in the US for up to 2 years at a time. If the E-2 status holder overstays this allotted time, this can result in unlawful presence accumulating, which can result in very serious consequences, including facing the 3-year or 10-year bar to prevent them from re-entering the US.
In other words, the length of validity of a visa is distinct from the length of validity of one’s status. The distinction often manifests itself in a pronounced way in the E-2 context.
The visa gives you the ability to apply to enter the US during the visa’s validity period.
An easy way to understand a visa is as a “ticket” to present to an officer which gives you the right to ask for permission to enter the U.S. under a certain category. The expiration date of an E-2 visa means you can apply for permission enter the U.S. under the E-2 category anytime before that date. For example, let’s assume you were issued an E-2 visa that is valid from January 15, 2023 to January 14, 2028. At any day between these two dates, you are allowed to show up to the U.S. border and show the visa stamp, and ask for permission to enter the U.S. to develop and direct your E-2 business.
The I-94 governs your period of authorized stay and your status while in the US.
Once a visa holder enters the US on that particular visa, they are given a corresponding “status” and a period of authorized stay pursuant to that status. In the E-2 context, let’s continue the example where you had an E-2 visa that was valid from January 15, 2023 to January 14, 2028. Suppose you flew to the U.S. on February 15, 2023 and showed the officer the E-2 visa that was valid. Upon being admitted to the U.S., you will be placed in authorized “E-2 status” starting from your date of entry, February 15, 2023, to 2 years following that date, February 14, 2025. Whenever a foreign national is admitted to the U.S., an I-94 record is attached to them. The expiry date of the foreign national’s authorized period in the U.S. will be written on this I-94 — it is extremely important to keep track of it to ensure you do not stay longer than this date. It is possible to pull your own I-94 record online through the government’s website.
The foreign national needs to leave the US upon expiry of their status, even if their visa is valid for longer.
A seemingly paradoxical situation presents on February 14, 2025, the last day of the allotted 2-year stay in E-2 status notwithstanding the 5-year validity of the E-2 visa. Suppose the E-2 investor did not leave. On February 15, 2025, the E-2 investor starts accruing unlawful presence, notwithstanding the fact that the E-2 investor has an E-2 visa in their passport that is valid till January 14, 2028. Furthermore, if the E-2 investor accrues unlawful presence, this will automatically void their E-2 visa for any future entries to the US.
Another way to understand this distinction is to consider the B1/B2 visa context. Although a B1/B2 visa can be valid for up to 10 years in many cases, this certainly does not mean that a B1/B2 visitor can stay in the US for 10 years in a single visit. Each visit is limited to up to 180 days only, and the visitor must leave before this period expires notwithstanding their B1/B2 visa is valid for many more years.
On the flip side, a foreign national may be authorized to stay in the US for a longer period of time even after their visa has expired.
To continue with the above hypothetical, now let’s say the E-2 investor applied to enter the U.S. on E-2 status on January 10, 2028. This is still within the validity period of the E-2 visa, which was valid from January 15, 2023 to January 14, 2028, so the E-2 investor may still use this as their “ticket” to apply to enter the US to develop and direct their business.
Suppose the investor was admitted to the U.S. on January 10, 2028 under this E-2 visa. Then, the E-2 investor will be given a 2-year period of “authorized E-2 status.” This means the investor’s I-94 will show that the authorized period of stay is from January 10, 2028 to January 9, 2030.
Starting from January 15, 2028, the E-2 “visa” is no longer valid. But the investor is still allowed to remain in the U.S. and continue working to develop and direct their E-2 business. In fact, the investor can continue doing so all the way up till January 9, 2030. In this situation, if the investor leaves the U.S. for any reason, they no longer have the ability to apply to re-enter because their E-2 “visa” has expired. If they wish to re-enter the U.S. to continue working on their business at this point, they will need to apply at a consulate for a renewed E-2 visa before they can enter again.
