Embarking on obtaining an E visa, crucial for treaty traders (E-1 Visa) and investors (E-2 Visa) eyeing the U.S. market, presents two distinct paths: Visa Abroad or Status Change inside the U.S. These are essentially different strategies to achieve the same objective – legally engaging in business activities in the U.S. Let's delve into the nuances of each method, tailored for the understanding of college students. Please get in touch with me at rohit@inventimm.com to learn more. I'm very approachable and would love to help you out.

E Visa Abroad: Consular Processing for E-1/E-2 Visas: An International Strategy

Obtaining an E-Visa abroad is done by a procedure called Consular Processing. Consular Processing is the route you take when you're outside the U.S. and planning to apply for an E visa. It's akin to starting your professional journey from your home base. Here’s the breakdown:

• Application Stage: You initiate your E-1/E-2 visa application at your home country's U.S. Embassy or Consulate. It’s like laying the groundwork for your entrepreneurial venture overseas.
• Interview Process: After submitting your application, you'll be summoned for an interview at the embassy or consulate. This step is akin to a vetting process, ensuring your intentions and qualifications align with the visa requirements.
• Visa Approval and Entry into the U.S.: Post-approval, the visa is stamped in your passport, granting you entry into the U.S. to commence or manage your business.
• Visa Validity: The time given on your visa depends on the US treaty with your nationality. It can be as little as three months with a single entry(Ex, Bangladesh or Jordan) or as much as five years with multiple entries (Ex, Canada or the UK). Please click this link to receive information on the number of years or months you receive on the E1 or E-2 visa. Once you enter the US, you are given a status indicated by a form I-94 by a Customs Officer at a port of entry, and this is typically two years upon each entry into the U.S.

Domestic Status Change: Transitioning to E-1/E-2 Status in the U.S.

Contrastingly, the Status Change is for those already in the U.S. on a different visa type, such as a student or tourist visa, and looking to transition to an E visa. Most individuals on a different visa type can transition to an E-1 or E-2 Status, except for a J-1 Visa holder subject to a two-year home residency. It’s like altering your course mid-journey. The process unfolds as follows:

• Filing for Change: You submit a petition to the U.S. Citizenship and Immigration Services (USCIS) to change your current visa status to E1 or E-2. It is done by filing forms I-129 and, optionally, I-907 for an adjudication in 15 calendar days.
• No Interview Required: Status Change bypasses the interview phase, streamlining the transition.
• Status Change Approval: Upon approval by USCIS, your status switches to E, allowing you to engage in your business activities without exiting the U.S.
• Validity Commencement: The validity of your E status begins from the approval date by USCIS. Please visit this blog to understand the fundamental difference between Status and Visa in U.S. Immigration.

E-1/E-2 Visa Applications: Critical Differences Between Consular Processing and Status Change

• Geographical Starting Point: Consular Processing is an external application process, whereas Status Change is internal within the U.S.
• Interview Requirement: Interviews are standard in Consular Processing but not in a Status Change.
• Travel Flexibility: A Visa obtained by Consular Processing allows for international travel without disruption. However, a Status Changeapproval cannot be used to travel internationally. The E Visa holder would need to reapply for the E-1 or E-2 Visa at the Consulate, as mentioned in the Consular Processing section above.
• Variable Processing Times: Processing durations can differ significantly between the two routes, influenced by the specific U.S. consulate or embassy and the internal processing times of USCIS. Domestically, the E-1 or E-2 Status Change can be much quicker than the consular process with Premium Processing.
• Documentation: Both routes require similar business-related documentation but with different administrative bodies - the Department of State for Consular Processing and USCIS for Status Change. With each body's unique nature of adjudication, it is essential to consult with your immigration attorney on the best way to approach your application.

What to Consider When Applying for E-1/E-2 Visas: A Comprehensive Guide"

• Your Current Situation: Your choice depends on whether you are in the U.S. or abroad.
• Travel Needs: Consular Processing might be more suitable if your plans include immediate and frequent international travel.
• Convenience and Speed: Consider which process is more efficient or convenient based on your location and the current processing times. A Status Change within the US can be much quicker if you’d like to begin working on your E-2 business immediately.

Can I start with an E-1/E-2 Status Change in the US and then opt for E-1/E-2 consular processing to receive a visa later when I decide to travel?

Yes, you can, and many of our clients do this. However, it is vital to understand that Consulates abroad are not bound by the USCIS Status Change Approvals on E-1/E-2 Visas, and there are no E-1/E-2 Visa stamps based purely on a previous change of status obtained in the United States. Therefore, the E-1 or E-2 Visa status granted by the USCIS is only valid as long as the trader or investor exits the United States. Hence, a new application must be prepared for the E-Visa Consular Processing, and the strategy can be quite different.

Consular officers have broad discretion in determining whether trade or investment is “substantial” or whether the Company in which the investment was made is “marginal.” Further, under the doctrine of Consular non-reviewability, there is no appeal for E-Visa denials. In layman’s terms, they can be stricter.

Scenarios one could consider a Status Change domestically versus Consular Processing Internationally:

The trade or investment is not clearly “substantial,” or a marginal investment has been made. T

U.S. law does not set a minimum investment amount for obtaining the E-2 Visa. The regulations state that the investment must be “substantial.” Substantiality is a term of art based on the facts at hand. A $300,000 investment may be considered unsubstantial on a manufacturing plant valued at $5 million, but a $40,000 investment for a tech startup may be considered substantial.

Because no minimum amount is required, the E-2 Visa can be obtained even with low investments, such as $40,000. The problem is that it would be challenging to persuade a Consular officer that an investment below $80,000 is substantial. And again, the Consulate's decisions on E Visas are not appealable.

However, when a “Status Change” is requested in the U.S., the USCIS must follow the law and the substantiality test. Besides, denying a change of status is appealable in Federal District Court if it is arbitrary and capricious.

Pending Imminent Immigrant Visa Petition.

One of the quirks of the E Visa is that it can be renewed indefinitely, as long as the Treaty nationals or the investor owns the Company and the Company has not substantially ceased their trading activity or operations. However, the E Visa is considered a non-immigrant Visa and does not create a direct path to U.S. permanent residency (Green Card). On the question of whether the E Visa allows dual intent, there is a split of opinions.

The position of the U.S. Department of State is that the E-1/E-2 Visa does not allow dual intent. Therefore, an applicant with a pending immigrant Visa petition is unlikely to obtain an E-1/E-2 Visa at a U.S. Consulate. However, the USCIS recognizes a limited form of dual intent for E-1/E-2 Visas, stating that “An application for initial admission, change of status, or extension of stay in the E visa classification may not be denied solely based on an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.”

Therefore, the beneficiary of a family-based or employment-based immigrant petition should always apply for an E-2 Visa in the United States through a status change. However, the consulate can make exceptions to this rule depending on how quickly the Green Card will likely come. For example, a US Citizen sibling who sponsors another sibling can take more than 15 years, while a parent who sponsors their child over 21 can take over seven years. The consulate may accept that the E-Visa applicant’s immigrant intent is not imminent and that he or she truly has nonimmigrant E-2 intent. However, a pending marriage-based green card petition may be considered differently. This can be very important to bring up with your immigration attorney during consultations.

Needing an expedited decision on an E-2 or E-2 application

Sometimes, an investor or trader needs a quick adjudication of an E2 or E-1 Visa petition. For example, suppose the investor and trader must close immediately on an existing business conditioned on the E-1 or E-2 approval. In that case, a Status Change via the domestic approach is the better approach as it is much quicker. This can also be in a situation where the investor or trader needs to get to work immediately with their clients or customers and wants to start immediately.

Otherwise, they cannot work on their business until the E-1 or E-2 visa is approved at the consulate. As mentioned, USCIS allows Premium Processing for status changes to E2 to obtain a decision in 15 calendar days or even less. U.S. Consulates do not offer expedited processing and generally require at least 6-8 weeks to decide.

Final Thoughts on E-1/E-2 Visa Application Process: Making the Right Choice

Consular Processing and Status Change lead to acquiring an E visa, a vital tool for engaging in trade or investment in the U.S. Your decision should hinge on your current location, travel flexibility, and each process's convenience. While each pathway has complexities, they represent different strategies to accomplish your professional objectives in the U.S. market.

Seeking Expert Advice: Consulting an Immigration Attorney for E-1/E-2 Visas

For personalized advice, consider consulting with your Beverly Hills Immigration lawyer specializing in the E-1/E-2 Visa. Feel free to email me at rohit@inventimm.com. I’m always available to answer any questions.

E-1 and E-2 Visa Resources: Further Reading and Expert Insights

U.S. Department of State - Bureau of Consular Affairs: [Source: U.S. Department of State, E-1 Treaty Trader and E-2 Treaty Investor]

U.S. Citizenship and Immigration Services (USCIS):[Source: U.S. Citizenship and Immigration Services, Nonimmigrant Visas]

American Immigration Lawyers Association (AILA). (2023). Understanding E-1 and E-2 Visa Requirements and Challenges. https://www.aila.org

Fragomen on Immigration Fundamentals.(2015) Chapter on E-Visas