Applicants for visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence. As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79, with few exceptions. Persons aged 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate. The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged. Visa wait times for interview appointments and visa processing time can take months depending on the Consulate involved. During the visa application process, usually at the interview, an ink-free, digital fingerprint scan will be quickly taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer.
There are two ways you can apply for an E-2 visa. These are described below.
If you have been granted a change of status and leave the U.S., you must qualify for an E-visa at a consulate before reentering. So basically, you must reapply for the E-2 from scratch and submit all supporting documentation as if the application were a new one. If your application is approved, an E-2 visa will be added to your passport and you will be able to leave and reenter the U.S. at will.
Consular E-visas can be issued for 5 years whereas USCIS will only issue E-2 status for 2 years. Note that this could be particularly relevant in light of the marginality requirement of the E-2 visa. This problem could be avoided if a 5-year E-2 visa was issued, since you may then have more time to get the business up and running.
Even though the standard for E-2 visas is the same worldwide, some consulates are easier than others to get E-2 visa approvals through. For example, even though there is no set amount of money that an investor must spend, some consulates will not approve E-2 visas unless over $100,000 is spent. For others the threshold amount is even higher. Also, most attorneys agree that USCIS applies the standards fairly consistently (in a relative sense) and some argue that USCIS approval is easier than consular approval. At the end of the day though, a business owner is going to have to apply at a consulate at some point.
What are the Required Visa Fees?
Nonimmigrant visa application processing fee – The current fee for E-2 visas is $ 210 U.S. per person applying for a visa in the family with the payment being made to the “U.S. Consulate General”.
You will need to provide a receipt showing the visa application processing fee has been paid when you come for your visa interview.
Visa issuance fee – Additionally, if the visa is issued, there may be an additional visa issuance reciprocity fee, if applicable.
Misrepresentation of a Material Facts, or Fraud
Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the U.S.
Visa Denials
If the consular officer should find it necessary to deny the issuance of a visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, however, consular officers are not obliged to re-examine such cases.
Staying Beyond Your Authorized Stay in the U. S and Being Out of Status
It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip, based on the specified end date on your Arrival-Departure Record, Form I-94. Failure to depart the U.S. will cause you to be out-of-status, violating immigration laws.
Staying beyond the period authorized by the Department of Homeland Security and being out-of-status in the U.S. is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S.
Staying unlawfully in the U.S. beyond the date CBP officials have authorized–even by one day–results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.
Family Members
Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas to accompany the principal visa holder. The spouse of an E visa holder may apply to DHS for employment authorization. Dependent children of an E visa holder are not authorized to work in the U.S.
Special particulars for E2 Visa Renewal
Investment is one of the primary areas of focus when applying for an E2 visa. The immigration official who is looking into your case wants to know that you invested “substantially” in the E2 company, that your investment is “at risk,” and that the money you invested was obtained legally.
The emphasis turns away from the investment and onto the operation of the business when you apply for your E2 visa renewal. You do not need to add more money to the E2 business in order to be eligible for an E2 visa renewal. However, you must show that your E2 firm complies with the E2 regulations moving forward. Below, we will go over how this applies:
Additional Documentation Request
An applicant for a Treaty Trader (E-1) or Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law and complies with the many requirements for the E visa classification. The consular officer may provide the applicant with special forms for this purpose. The applicant can expect the consular officer to request additional documentation, to decide about eligibility for a treaty trader or treaty investor visa. It is impossible to specify the exact documentation required since circumstances vary greatly by applicant.
Visa Ineligibilities and Waivers
Certain activities can make you ineligible for a U.S. visa. In some instances, an applicant who is ineligible, but who is otherwise properly classifiable for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.
U.S. Port of Entry
A visa allows a foreign citizen coming from abroad, to travel to the U.S. port-of entry and request permission to enter the U.S. Applicants should be aware that a visa does not guarantee entry into the U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. If you are allowed to enter the U.S., the CBP official will determine the length of your visit on the Arrival-Departure Record (Form I-94). Since Form I-94 documents your authorized stay in the U.S., it’s very important to keep in your passport. Upon arrival (at an international airport, seaport or land border crossing), you will be enrolled in the US-VISIT entry-exit program. In addition, some travelers will also need to register their entry into and their departure from the U.S. with the Special Registration program.
Travel Plan
No assurances regarding the issuance of visas can be given in advance. Therefore, final travel plans, or the purchase of non-refundable tickets should not be made until a visa has been issued.
Unless previously canceled, a visa is valid until its expiration date. Therefore, if the traveler has a valid U.S. visa in an expired passport, do not remove the visa page from the expired passport. You may use it along with a new valid passport for travel and admission to the U.S.
Renew and Extension requirements for E-2
In general, you must continue to meet all the requirements to get the renewal and extension of E-2.
These are the significant requirements to qualify for an E2 visa on an initial basis:
- You must belong to a country who has an E-2 treaty with that country.
- You must invest a significant amount of capital in a US company (we typically recommend at least $100,000 or more).
- Your business must be running actively and is a profitable business.
- When your E2 status ends you must be prepared to leave the country
- Your investment capital must be at risk.
- Your E2 business is not a marginal business.
- Your E2 business must be direct and developed by you.
- Your investment funds must be gained legally.
Marginality Requirement
- You must prove that the E2 company won't be a marginal enterprise when you initially seek an E2 visa.
- A marginal enterprise is essentially a company that only makes enough money to pay the E2 investor's basic living expenses and those of their family.
- You must demonstrate that the company won't be a marginal enterprise when you first seek an E2 visa.
If the company is a start-up, you should typically include a business plan with Pro-forma future estimates for the business’s performance to demonstrate that the company won’t be a marginal enterprise. Generally, you can no longer rely on future estimates when applying for an E2 visa renewal. The company has probably been in operation for a number of years by the time the E2 visa needs to be renewed. Therefore, at this point, the major indicator of whether the business is a marginal enterprise is its actual performance. To ascertain whether the business is not a marginal enterprise, the immigration official examining your case will look at the company’s historical performance. You must submit the company’s prior financial statements to meet this criterion. The business should be making more than enough money, according to the financial papers, to support the E2 investor and their family. As an alternative, you should illustrate that the E2 company employs people, as this can also help to demonstrate that the company is not marginal. It may also be possible to demonstrate that the company is not marginal by combining proof of revenue and job creation. When requesting an E2 visa renewal, it can be difficult if the E2 company has little revenue and/or no staff. This is due to the possibility that the company will be labelled a minor enterprise. To get beyond this obstacle, the E2 visa renewal applicant must offer convincing proof of the business’s future growth to the point where it will no longer be marginal.
One method to demonstrate that the company will grow is to show that you have invested more money in it and have a strategy in place for using it effectively. To show how the funds will be used to raise the performance of the company, a revised business plan should be added.
Conclusion
The ability to renew an E2 visa is one of its advantages. An E2 visa may be renewed an unlimited number of times. You can apply for a new E2 visa or file a petition to extend your E2 status as long as you continue to meet the conditions for the E2 visa. Timing and planning are crucial when submitting an application for an E2 visa renewal or an extension of E2 status. If at all possible, you should have a knowledgeable immigration lawyer manage this process.