Our clients often ask us whether it’s better to apply for an E-1 visa at a Consulate or whether it’s better to file an E-1 Change of Status application with USCIS.
Applying at a Consulate
- Prepare your application
You will have to prepare an E-1 application that demonstrates that you meet all E-1 requirements. You should check the requirements of the U.S. Consulate at which you will be applying for the E-1 visa as some Consulate provide specific instructions as to what kind of evidence should be submitted to meet the E-1 requirements. You will also have to submit a DS-160 and DS156e application with your application.
Some Consulates allow submissions via email, but some Consulates require that you mail the application to the Consulate.
- Waiting for the interview
After you submit your E-1 application, the Consulate will take some time to review the application. The review time depends on the Consulate (for example, the Consulate in Toronto generally takes 10 business days to review the application, but some Consulates may take 8-10 weeks to review the application). The Consulate will reach out to you in case it needs any additional documents. After the review of your application is completed, you will be able to schedule an interview at the Consulate.
- Interview at the Consulate
During the interview, you will be asked questions about your company (in case you already set up a company), the trade between the U.S. and your home country, you will be asked to explain the exchange of goods/services and how is the exchange international, how is the trade substantial, what are your plans with the business in the U.S. in the future etc. In case you submitted a business plan, the officer may ask you some questions about the business plan.
The officer will then either approve/deny the application or he/she may issue a request for additional documents. If the visa is approved, the Consular officer will take your passport and will issue you a visa in the passport (this usually takes 3-10 business days, but depends on the Consulate).
- Coming to the U.S.
Once you have the visa stamp in your passport, you will be able to come to the U.S. You should apply for a social security number and if you have a spouse that wants to work in the U.S., he/she should apply for a work authorization
Applying for a Change of Status within the U.S.
If you are currently in the U.S. on a non-immigrant visa (e.g. B-1 business visitor visa) and you want to change your status to an E-1 status without leaving the U.S., you can do that by filing a Change of Status application with USCIS.
To change your status in the U.S., you must meet the following requirements:
- You must have been lawfully admitted in the U.S.;
- You must be in a valid non-immigrant status;
- You are maintaining your non-immigrant status (you did not violate conditions of your status)
You will have to file an I-129 form (including the E Supplement). You will also have to provide documentation to support that you meet all the E-1 requirements.
It usually takes USCIS couple weeks/months to adjudicate the Change of Status application. USCIS will then approve/deny the application or it can also issue a Request for Evidence. If USCIS approves the petition, you will receive an I-797A Approval Notice and this notice will be evidence of your legal status in the U.S. You will be in an E-2 status, but you will not have an E-2 visa (you can only get the E-2 visa stamp at a U.S. Consulate abroad).
You will be granted the E-1 status for 2 years, and not for the full E-1 visa validity period. For example, if you are a national of Canada, you can be granted E-1 visa for a period of 5 years. If you apply at a Consulate, you will most likely be granted the visa for 5 years, but if you apply for a Change of Status with USCIS, you will only be granted E-1 status for 2 years.
If you apply for a Change of Status with USCIS and you leave the U.S., you will have to go to a U.S. Consulate, prepare a brand new E-1 petition and submit all supporting documentation to the Consulate. You cannot simply re-submit the application you submitted to USCIS as the Consulate will want to see updated evidence of the trade.
Should I apply at a Consulate or should I apply for a Change of status with USCIS?
We generally advise our clients to apply for an E-1 visa at a Consulate. The main reason for this is that the Change of status is not a visa and it does not allow you to reenter the country if you leave. As such, you are restricted from re-entering the U.S. and if you leave, you have to go to a Consulate and reapply for the visa. As mentioned above, this is not a visa stamp such as that issued for an H-1B visa, but is a reapplication. The application is considered a new application by the Consulate and you must put together a comprehensive package similar to the one that was put together for USCIS.
Another reason is that if you apply for an E-1 visa at a Consulate, you will most likely be granted the E-1 visa for the full visa validity period. On the other hand, if you apply for a Change of Status with USCIS, you will be only granted the E-1 status for 2 years, and you will have to prepare a renewal application after the 2 years. This can incur extra legal fees and also extra government filing fees.
On the other hand, if you are in the U.S. on a non-immigrant visa, you want to stay in the U.S. during the application process, and you are not planning to leave the U.S. in the next 2 years, Change of Status may be the right option for you. In addition, if your visa reciprocity is short (for example, if you are a national of Jordan, you would only get the E-1 visa stamp for 3 months), you may want to apply for a change of status. If USCIS approved your change of status application, you would be granted E-2 status for 2 years.
Please click here if you want to find out what documents you should submit to prove that there is international trade between the U.S. and your home country.
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