E-2 Visa: Change of Status or Consular Processing

If you are a business investor and have decided to pursue the U.S. investor visa, then you may want to be privy to the legal process that it entails. As the wrong choice can cost you valuable time and resources, it’s extremely important to select a visa that is most appropriate for your situation.

While we always recommend that you consult with a qualified immigration attorney on all United States visa issues, here we will cover some of the details pertaining to filing E-2 visa change of status and the option of going through E-2 visa consular processing.

The United States Citizenship and Immigration Services (USCIS) defines an E-2 investor visa as a classification reserved for individuals that are poised to irrevocably invest significant legitimate capital in a business that operates within the borders the United States. For a full description of this particular visa class, please refer to our article Top E2 Visa Requirements for Investors. To summarize, you must provide evidence that:

• Your business is bona fide and not marginal
• You are a citizen of a United States treaty country
• Your investment is substantial
• You have a controlling portion of your company

Once you have collected the necessary evidence outlined in the aforementioned article, you can file for a change of status provided that you are currently in the United States. It is important to note that the conventional method of obtaining a visa (i.e. filing an I-129 form) is not possible while you are outside of the United States.

The USCIS recommends that you contact the U.S. Department of State to learn the processes required when attempting to obtain an E2 visa while abroad. The most common way to obtain this visa is to use the E2 visa consular processing method. If you are already in the United States on a different visa, however, then the next step is to file an I-129 form to request a change to the E2 nonimmigrant status.

Advantages of Changing Your Status vs Consular Processing

When filing for your visa, there are two main methods of going through this process. The first is filing for an E2 visa change of status, and the second is to go through E2 visa consular processing. While the latter is more common, you may want to consider obtaining a change of status if your immigration lawyer recommends it.

Change of Status

The option to change your status to the E2 classification is only available to those that are already in the U.S. under a different nonimmigrant status. If you are still abroad and not under a U.S. visa, then you will need to go through consular processing.

The process of changing your status has a few benefits that may be worth considering. For one, you do not need to leave the country. All you need to do is file an I-129 petition under the E2 classification. This is a much easier and simpler method than the appointment system of consular processing.

Changing your status can also be the faster method. Since the I-129 is used to change your status, it usually takes an average of six months to process depending on the case load of the USCIS service center processing your E2 visa petition. However, the I-129 can be expedited to exactly 15 calendar days through an optional service called premium processing.

Even though premium processing may seem convenient, it does add an additional fee to your petition and it does not increase your chances of being approved.

Consular Processing

While those that are already in the U.S. can choose between change of status and consular processing, those that are outside the U.S. must use the latter.

E2 visa consular processing involves having you, the applicant, travel to the designated U.S. embassy or consulate in your home country. If you are not currently in your home country, you will likely need to travel there in order to appear for your appointment with the consulate.

Once there, an immigration officer will interview you one-on-one to determine whether or not your case is legitimate. The best advice that can be given for this interview is to answer honestly and to come prepared with documentation to address any question or issue.

Going through consular processing can have it’s advantages in certain situations. For example, it tends to be a much faster process than changing your status without premium processing.  Even though you can expedite your petition while changing your status, it does raise the cost significantly.

Which brings us to the second advantage, the cost. You need to consider the cost of traveling to your home country and weigh it against the cost of the I-129 petition and possible premium processing. If you are traveling abroad in your home country while under a nonimmigrant status such as the L-1 or H-1B, it may be better to use consular processing simply to eliminate the traveling cost and make your route to an E2 visa less expensive.

However, there are some disadvantages that may not be as obvious. For one, the immigration officer that interviews you may have a more stringent view of the requirements.

For example, there have been cases of people obtaining an E2 visa change of status with a capital as low as $25,000 as opposed to the $75,000 that the consulate might enforce. Because of the subjective nature of the word “substantial”, it is important to contact an immigration attorney can help you avoid any pitfalls this might incur.

An important note to make is that the E-2 visa class will put you into a non-immigrant status. This may present problems if you have an outstanding immigrant petition. If you are pursuing your green card, then you may find it difficult to obtain your E-2 visa through consular processing. It behooves you, therefore, to petition for a change of status with the help of an immigration attorney if the issue of dual intent could arise in your application.

Disadvantages of E2 Visa Change of Status

The drawbacks to applying for an E2 visa change of status, however, could influence your decision. One such disadvantage is the possibility that while your application for a change of status is pending, visa retrogression might occur, which would mean that the quota for the maximum amount of monthly E2 visas has been reached.

This would result in a serious delay and could jeopardize your enterprise. Going with E2 visa consular processing can protect you from this possibility while simultaneously providing the service for a more reasonable cost, as obtaining an E2 visa change of status is the more expensive route.