I want to come to the U.S. to set up an E-2 business. Should I enter on a B-1 or B-2 visa? Can I change status in the U.S. if I entered on a B-2 visa?

If you want to come to the U.S. and explore E-2 investment opportunities, you should enter as a B-1 business visitor (either on a B-1 visaor as anESTA business visitor). Exploring investment opportunities is an activity that is specifically allowed under the B-1 visa category. Other activities you could engage into when in the U.S. on a B-1 visa are for example: interviewing future E-2 employees, setting up a business bank account, setting up an E-2 company, negotiating your lease agreement, meeting with your business partners, or meeting with your E-2 or business attorney.

The activities that are permitted under the B-2 visa category are for example tourism, visiting family, participating in social events (e.g. conferences), or obtaining a medical treatment.

If you want to come to the U.S. to explore your E-2 investment visa opportunities you should enter as a B-1 business visitor.

However, sometimes we have people who come to us who already entered the U.S. as B-2 visitors and who then want to change status to E-2 through USCIS. This can be sometimes problematic as USCIS may argue that if you did activities such as setting up a company, interviewing employees, or negotiating a lease agreement), that was not allowed on the B-2 visa and you cannot change your status as you were not maintaining your status. One way how this issue could be solved is that if you enter the U.S. on a B-2 status but then you realize that you should have entered as a B-1 visitor, you should immediately hire an attorney who will set up your company and you should hire an employee who will take care of hiring other employees and all the paperwork needed to set up the E-2 company. In such case, you personally would not be engaging in the activities and you could still change your status to E-2.

Another issue that sometimes come up is that clients tell us that they told the officer at the border that they are entering in the U.S. as they want to explore their investment opportunities, but then their I-94 form says they were admitted as B-2 tourist visitor rather than B-1 business visitor.

In this case, you could either ask that your I-94 form is corrected, or you could file the Change of Status application and if USCIS raises this, you could argue that you truthfully represent at the border what you plan to do in the U.S., and the fact that you were admitted as a B-2 tourist is just an error in the system.

You can read more about the E-2 requirements when you click here.