E-2 Visa Transfer | Switching to H-1B or Green Card

In the world of immigration law, it is not uncommon for people’s circumstances to change rapidly while in the U.S. Occasionally, these changes may interfere with your current nonimmigrant status or provide you with the opportunity to get a green card. If  that happens to you while under E-2 status, it is often a good idea to get an E-2 visa transfer of status.

E-2 Visa Background

If you are interested in using the E-2 visa as a vehicle to a green card, here is a quick breakdown of the requirements. To qualify for the E-2 Treaty Trader visa, you must:

• Be a national of a country that maintains a treaty of commerce and navigation
• Have invested or plan to invest a substantial amount of capital into a new or existing bona fide U.S. enterprise.
• Have the intention of entering the U.S. with the sole purpose of developing or advancing that enterprise.

The phrase bona fide is used by the USCIS to indicate an enterprise that is or will be real and actively doing business, meaning that it is exchanging goods or services for profit.

There is no official set amount of funds that must be invested for an E-2 visa. The amount tends to vary depending on the size of the enterprise and must simply be a substantial amount. This means that, if you are investing in a large restaurant or hotel chain, you may need to invest much more than if you were purchasing a small shop.

You must also be from a treaty country. Keep in mind that this does not require you to be currently living in the treaty country, you only need to be a citizen of a treaty country. If you are not sure whether or not your country is a treaty country, check the list provided by the Department of State.

Reasons to Get an E-2 Visa Transfer

As far as nonimmigrant visas go, the E-2 has plenty of advantages. It does not require a certain level of education and you do not need to have an employer sponsor you. In addition, the E-2 visa can be renewed indefinitely provided that you are still advancing the original enterprise.

H-1B

There may be situations that make you ineligible for an E-2 visa renewal. For example, if your enterprise is sold, confiscated, or otherwise terminated, you may not be able to renew and may need to get an E-2 visa transfer. One common route to take is the H-1B visa.

The H-1B visa is an ideal path for many immigrants to take due to the relatively low requirements needed to be eligible. However, this visa comes with its share of limitations. The H-1B is only valid for a maximum of six years and cannot be renewed after that. You must also have a sponsoring employer and your petition will be subject to an annual limit of available visas.

Green Card

Fortunately, the E-2 visa is considered a dual intent visa, which means that you can legally pursue legal permanent residency (green card status) while under this status. Many people choose to get an E-2 visa transfer to green card status to make their residence in the U.S. more permanent.

E-2 Visa Transfer to H-1B Status

Unfortunately, there is no official E-2 visa transfer process for the H-1B. You must apply for the H-1B from scratch like everyone else. The first step when you transfer your E-2 status to H-1B is to make sure that you meet the qualifications for the new status. They are:

• You must have at least a bachelor’s degree in the field in which you want to work. If you have relevant work experience, it may be used to substitute. Usually, one year of study at a university equals three years of work experience.
• Your job must be considered a specialty occupation according to USCIS standards.

If you qualify, you need to find an employer to act as your sponsor. While you were able to self-petition for the E-2 visa, you are not able to do so for the H-1B. This sponsoring employer must offer you a specialty position and file the I-129 petition on your behalf on April 1st of the year you plan to start working. Your employer will also need to obtain a Labor Condition Application for you as well.

Once your petition is filed, it will go into a lottery for random selection. This is because the H-1B is so popular that more people petition each year than there are visas available. If you have a master’s degree, you will have a better chance of being selected. Also, if you work for a nonprofit organization, institution of higher education, or governmental research center, you will be considered cap-exempt.

If you petition is selected, it will be evaluated to ensure that you are qualified for the E-2 visa transfer to H-1B status. If your petition is approved, then you can begin working as an H-1B worker no earlier than October 1st of the year that you petitioned.

Because the dates for the H-1B are so strict, you should be sure to plan ahead so that there is no gap between your E-2 visa expiration and your H-1B start date. Failing to take this into account could result in you being considered “out of status” during the gap which could end in severe consequences.

How to Adjust Your Status to a Green Card

If you are interested in transferring your E-2 status to become a legal permanent resident, you must first identify which green card best fits your immigration situation. Here are some common employment-based green cards for those on E-2 and even H-1B status:

EB-5: This is the only investment-based green card available, making it ideal for those on E-2 status. However, the investment amount for the EB-5 tends to be much greater than many E-2 investments. Where you might only have to invest $100,000 in a small enterprise for your E-2 visa, you will have to invest a minimum of $500,000 in a U.S. business in a rural or underemployed area for an EB-5. In a normal area, you will have to invest a minimum of $1 million. Fortunately, you are able to self-petition for this green card.

EB-2 NIW: Under normal circumstances, anyone applying for an EB-2 green card would need to have an employer sponsor them. That employer would also need to obtain a PERM Labor Certification on their behalf. However, if you are applying for the EB-2 with a National Interest Waiver (NIW), you can bypass the sponsor and PERM requirements. This is perfect for those that are starting an E-2 business or practice and would like to self-petition.

EB-2: Without the NIW, you will need to have a sponsoring employer and you will need to show that you either have an advanced degree (master’s or higher) or you can demonstrate exceptional ability in your particular field. Your employer will also need to get a PERM for you, which entails a relatively lengthy recruitment process that aims to determine if there are any qualified U.S. candidates available to take your position.

EB-3: This green card is for bachelor’s degree holders as well as skilled and unskilled workers. Like the EB-2, you will also need to have an employer and a PERM in order to qualify. Keep in mind that the processing time for the EB-3 can take significantly longer than the EB-5 or EB-2.

Whichever you choose, you will need to have a petition sent (either by you or your sponsor) to the USCIS. Once they receive you petition, you will need to wait until your priority date (the day that the USCIS gets your petition)  is current with the final action date given in your category and country according to the monthly visa bulletin.

After that, you will be able to file an I-485 application to adjust from E-2 to green card status.

Dual Intent

While the E-2 visa is considered a dual intent visa, there are some complications that may present obstacles to your path to a green card. For one, as an E-2 visa holder, you needed to prove to the USCIS that you had no intention of staying in the U.S. permanently when you applied. This is because E-2 treaty investors are given certain diplomatic rights and immunities that must be waived if they become legal permanent residents.

To waive these rights, you must submit an I-508 Request for Waiver of Certain Rights. This should be submitted alongside your green card petition. Without this form, you will not be able to adjust your status as an E class nonimmigrant. Speak with your immigration attorney to ensure that you are taking the correct course of action when it comes to an E-2 visa transfer to a green card.