Demystifying the E-2 Visa Change of Status: A Step-by-Step Guide for Investors

The E-2 visa, also known as the Treaty Investor visa, is a popular option for foreign investors seeking to obtain residency in the U.S. by establishing and operating a business in the United States. But what if you’re already present in the US under a different non-immigrant visa and want to transition to E-2 status? This is where the E-2 change of status comes in.

In this article, we’ll delve into the intricacies of the E-2 change of status process, providing a clear roadmap for investors seeking this route. We’ll cover the eligibility requirements, key steps involved, processing timelines, and crucial considerations to ensure a smooth transition.

What is an E-2 Change of Status?

An E-2 change of status allows you to switch from your current non-immigrant visa (e.g., F-1 student visa, B-1 business visa) to an E-2 visa while remaining within the United States. This eliminates the need to leave the country and reapply for the visa through a consular post abroad, potentially saving time and simplifying the process.

Key Distinction: Change of Status vs. Adjustment of Status

It’s important to differentiate between an E-2 change of status and adjustment of status (AOS). AOS pertains to transitioning from a non-immigrant visa to a permanent resident status (green card), while a change of status (COS) means changing visa categories while remaining within a non-immigrant visa category.

Eligibility for E-2 Change of Status

To qualify for an E-2 change of status, you must meet the following criteria:

• Be a national of a country with a valid E-2 treaty with the United States. You can find the current list of treaty countries on the U.S. Department of State website.
• Have already invested or are actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States. This could be an existing business you purchased or a newly created one. The investment amount must be proportional to the size of the enterprise and sufficient to ensure its successful operation. But in general the investor should invest $100,000 or more.
• Be actively involved in the management and development of the enterprise. This implies possessing the necessary skills and experience to run the business and devoting a significant amount of time to its operations.
• Maintain your non-immigrant status throughout the application process. This means adhering to the terms and conditions of your current visa and avoiding any unauthorized activities.

The E-2 Change of Status Process: A Step-by-Step Guide

1. Consult with an Immigration Attorney: Seek guidance from an experienced immigration attorney specializing in E-2 visas. They can assess your eligibility, advise on the best course of action, and assist with every step of the process.
2. Gather Required Documentation: Prepare the necessary documents as outlined by USCIS, including:
   • Form I-129, Petition for Nonimmigrant Status
   • Evidence of your E-2 treaty eligibility (e.g., passport)
   • Business plan and financial documents demonstrating your investment
   • Proof of involvement in the enterprise management
   • Evidence proving the legal source of funds being invested
   • Supporting documents for dependents applying for E-2 status (if applicable)
3. File Form I-129 with USCIS: Submit your completed petition and supporting documentation to the USCIS office with jurisdiction over your location in the U.S.
4. USCIS Processing and Adjudication: USCIS will meticulously review your petition, verifying your eligibility and adherence to program requirements. The processing time can vary depending on USCIS workload and case complexity. If you pay for Premium Processing, then your case will be adjudicated in 15 days. Otherwise it can generally take 4-6 months.
5. Biometrics Appointment: If your petition is approved, you’ll be required to attend a biometrics appointment for fingerprints, photographs, and signature collection.
6. Decision and Appeal: USCIS will issue a decision on your change of status application. If denied, you may have the right to appeal the decision. However, in most cases it is easier to refile rather than appeal a denial (provided that you are still in a valid status when you refile).

Important Considerations for E-2 Change of Status

• Processing Time: While Premium Processing can expedite the adjudication to 15 days for the main applicant, the standard processing time for E-2 change of status for the main applicant’s dependants can range from several months or longer. Be prepared for potential delays and plan accordingly.
• Dependent Processing: Spouses and children (unmarried and under 21) of the primary E-2 visa holder can apply for derivative E-2 status. However, their processing will be slower than the main applicant’s, requiring them to wait in the U.S. until their approval. In addition, we strongly advise the main applicant not to leave the U.S. until the dependents receive their COS. Otherwise it’s quite likely their change of status application will be denied if the main investor is not in the U.S. at that time.
• Travel Restrictions: After filing for an E-2 change of status, the investor and family will receive permission to stay in the U.S. for two years. However, if at any point you would like to leave the U.S., your status will end when you leave the country. In order to return, you would need to sign up for an interview at a U.S. embassy to receive an E-2 visa. But this process is independent of the COS process: just because you received a COS does not automatically mean you will receive a visa. Moreover, the dependents will not be able to receive a visa prior to the main applicant receiving his. Therefore, if the dependents plan to leave, the main applicant would need to as well, since the embassy first and foremost will want to speak with the main applicant at the consular interview.

With a 98% approval rate for petitions filed by AmLaw Group, you can rest assured knowing that your business immigration is in good hands. Schedule your consultation with one of our experienced E-2 visa attorneys and get started with your E-2 investor visa application today!