An E-2 visa can be obtained by nationals from certain countries if they buy or start a business. You can find out more about an E-2 visa by clicking here. Most applicants apply for an E-2 visa at a U.S. Consulate and when you apply, you normally present information showing the type of business that you are applying for. This includes a business plan as well as supporting documents showing investment expenditures. The Consular approval is based on the documents submitted to them.
In some instances, the original business idea may change and/or an applicant may want to sell the underlying assets or business. If the Corporation or LLC is sold or shut down, and the applicant does not apply for another visa or change status, the E-2 visa status ends and an applicant can only stay in the U.S. subject to the grace period.
In some instances, an applicant may keep the Corporation and/or LLC and either i. Change the business significantly (eg. change a consulting business to a restaurant); or ii. Sell the underlying assets in the business and purchase a new business (eg. sell all of the assets in a restaurant, keep the LLC and then open a cabinet making business). When either of these situations occur, the following questions come up.
What Happens when I sell my E-2 business? Can I sell my E-2 business and still stay in the U.S.? What if my E-2 business changes significantly? If I keep my Corporation or LLC, can I sell the assets of the E-2 Business? If I sell my E2 visa business, how much time do I have to buy another one?
Our firm believes that if you significantly change the E-2 business such that it no longer resembles the business that you applied for, you may have to apply for another E-2 visa. For example, if you sell the assets of the underlying business (Eg. a car wash) and buy a new unrelated business (eg. a bar/restaurant) but keep the LLC, our opinion is that the sale of the underlying business is such a significant change that it would require contacting the Consulate and possibly a new E-2 visa application.
When the U.S. Consulate in Toronto approves a case, they send a registration document that indicates that you must contact them if there are any significant changes in the business and they use share ownership OR change of headquarters to a different State as examples of significant changes. (surely if they want to know about changing States, they would want to know about the sale of an underlying business) Our thought is that the visa was approved for the business that was presented to the Consulate and a valid I-94 or just having an LLC with no activity is not enough to maintain status. USCIS has the same position as the U.S. Consulate in Toronto and we believe other Consulates may feel the same way.
In short, if you significantly change your E-2 business from what was presented, we recommend that you seek counsel from an experienced E-2 immigration attorney to make sure you are maintaining status.
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