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Should I go to a U.S. Consulate to get an E-2 Visa or change to E-2 status in the United States? (Part 2: Applying for a Change of Status with USCIS)

By October 13, 2016May 7th, 2021E-2 Visa, Immigration, Investor Visas

An E-2 visa is a great visa for a person who wants to launch a startup or purchase a business in the United States. In order to obtain the visa the applicant must invest in a business in the United States, be a national of a treaty country and ultimately hire U.S. workers. A full list of the visa requirements can be obtained by clicking here. One important decision during the E-2 application process is whether to apply for an E-2 visa at a U.S. Consulate abroad or to apply to change your status in the United States.  See the first part of this blog post series by clicking here.

This is part two or our two-part blog post which explores the pros and cons of applying for an E-2 at a U.S. Consulate or as a change of status. In part two, we examine the pros and cons of applying for a change of status.

Part Two: Applying for a change of status with USCIS

What are the Pros and Cons of Applying within the United States for a change of status?

The pros of applying for a change of status in the United States include the following:

  • Convenience – If you are currently located in the United States and it would be difficult or inconvenient to have to travel abroad, applying for a change of status may be the best option, as it allows you to apply and get an approval while remaining in the United States.
  • Consistency –Each Consulate has its own approach and interpretation of the E-2 requirements, meaning it can sometimes be hard to predict what Consulates will focus on for an E-2 application. Additionally, not all Consulates regularly process E-2 visas, so it is possible to get an officer who is very unfamiliar with the E-2 visa. In our experience, USCIS standards for E-2 adjudication tend to follow a more consistent pattern. USCIS also accepts lower investment amounts of around $50,000, when it makes sense in the context of the business.
  • Supervisor Review – Before a case is denied, a USCIS supervisor will review the case. This is different than at the Consulates, where one consular officer is making the decision, almost always without input from any other consular officer.
  • Ability to file a Motion to Reopen or Motion to Reconsider – If your case is denied you have the option to file a Motion to Reopen, stating new facts and providing evidence that shows you were eligible for E-2 status at the time the petition was filed. If you feel the law was applied incorrectly and the decision was incorrect on the current evidence, you also have the option of filing a Motion to Reconsider.

The major con of applying for a change of status as opposed to applying at a Consulate is that it limits your ability to travel outside of the United States. The approval notice granting the change of status will allow you to stay in the U.S. to run your E-2 company for up to two years, but once you leave the U.S. you will not be able to re-enter on E-2 status until you submit a brand new E-2 application at a Consulate and get an E-2 visa stamp. An E-2 approval notice from USCIS is not binding on the Consulate and while a prior approval may help strengthen your case, the Consulate will review your application as a new application and are not required to give any weight to the prior USCIS approval.

The decision of whether to apply at a Consulate or with USCIS is dependent on many factors and will vary based on individual situations. It is important to discuss your options with an experienced immigration attorney who can assist you to make the best choice. To find out more about the pros and cons of applying at a Consulate, click here.


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