When Should an E-2 Visa Applicant Consider a Change of Status Instead of Consular Processing?

An E-2 visa is an excellent visa for a foreign national who wants to direct and operate a business in the United States. Unlike the EB-5 visa, the investment amount for an E-2 visa can be relatively low and the visa does not have any specific number of jobs that must be created. You can find out more about applying for an E-2 visa by clicking here.

Although applying for an E-2 visa at a Consulate is usually preferred, there are instances where applying for the E-2 visa through United States Citizenship and Immigration Services (USCIS) by requesting a change of status may make sense. If the answer to any of the following questions is “Yes” then you could consider processing your E-2 visa through a change of status. Even in these instances though, Consular processing may still be the way to go as you will ultimately have to do that anyway. You should review these questions in conjunction with an E-2 immigration lawyer.

1. Do you need your application adjudicated quickly?

USCIS will process your application in 15 calendar days if you pay an extra $1410. You should keep in mind that the clock stops if you receive a Request for Evidence (“RFE”) and if you do receive one, it will likely take you time to answer. Once you answer the RFE, you must courier the answers back to USCIS and they will take up to another 15 calendar days to give you a response. It is possible to receive another RFE, but at this point your application is usually approved or denied. While premium processing may be fast, many Consulates will process your application as fast (or faster). For example, the Consulate in Toronto will allow you to schedule your interview 10 days after you submit the supporting documentation to them. The submission is done through email so it also eliminates the time and expense of using a courier

2. Do you have a very small investment amount?

One area where we do see some variation in the application of the same law at Consulates is in the investment amount area. The Statute that governs E-2 visas says that the investment amount must be “substantial” in relation to the business being started. This means that if the business is a service oriented business, the cost to set up a business of this type is low (eg. $15,000 spent and $35,000 working capital for a total investment of $50,000). If you were setting up a car manufacturing plant, the required investment would be higher. Our experience has been that USCIS applies the law with respect to investment amount fairly consistently and does not deny applications just because an investment amount is low. This is primarily because USCIS decisions can be appealed and the applicant is afforded due process when in the U.S.. We have also seen that some Consulates have reputations for systematically denying applications where the investment is under a certain amount. (eg. We recently encountered a Consulate where after research, we understood that they would likely deny any application where the investment was under $200,000).

It is worth noting that while adjudication at Consulates may not be as consistent as USCIS, the applicant will have to go to that Consulate at some point. Also, Consular officers are rotated every 2 years so a “good” Consulate may be a “bad” consulate over time. Finally, our firm has regularly processed E-2 visas with low investment amounts at several Consulates and at many Consulates the adjudication is done in a manner similar to USCIS. That being said, there are some Consulates where the battle will always be up-hill regardless of the application and in some of those cases a change of status is a great option. The key is that you should work with a qualified immigration attorney to carefully assess venue so you can make the best decision. The decision is not clear cut and different facts will result in different decisions.

3. Is your Visa Reciprocity Short? (Eg. 3 months)

One of the factors related to the length of time that an E-2 visa will be issued for depends on the visa reciprocity between the U.S. and the Treaty country. In some cases (eg. Iran, Bangladesh, Armenia) the visa is only issued for 3 months. You can find out more about how long an E-2 visa is issued for by clicking here.   It is important to keep in mind that E-2 visa length only governs the time period that you have to enter the country. Once an applicant enters the country, they are given 2 years in E-2 visa status even if they enter on the last day of their E-2 visa. The problem arises when the E-2 visa holder leaves the U.S.. When they leave, they have to go back to the Consulate in their home country to renew the E-2 visa and some countries limit the number of possible renewals. In a situation where the reciprocity period is very short, a change of status may make more sense as even with the initial E-2 Visa, the short reciprocity restricts the applicant from leaving the country after the visa expires.

4. Do you have a green card petitions outstanding?

If someone has filed a green card petition on your behalf (eg. An employment based green card), you may have an easier time getting an E-2 visa through a change of status than at a Consulate. If you have an immigrant petition outstanding, you should speak to a qualified immigration attorney to carefully navigate through this process.