Applying for E-2 Investor Status in the US versus Applying for an E-2 Visa in Your Home Country

Wondering whether you should apply for E-2 Investor Status in the US or an E-2 Visa in your home country? Before addressing this question, it is important to understand that E-2 visas are unique animals. They are procedurally distinct from other visas such as H-1bs and L-1s. Their primary unique characteristics are:

• They are not available to all foreign nationals, only foreign nationals from countries that have E-2 treaties with the United States. Here is a complete list of E-2 countries.
• A preliminary petition is not required to be filed first with USCIS (U.S. Citizenship and Immigration Services), as is the case for H-1b and L-1 visas. Instead, you only file an E-2 petition with USCIS if you are already in the U.S., and want to change your status from another category to E-2 status, without traveling back to your home country. (Make sure you understand the difference between “immigration status”, a “visa” and permitted stay in the U.S., as controlled by your I-94 card.)
• If you change to E-2 status while in the U.S. (by filing a petition with USCIS), if/when you later apply for a E-2 visa from a U.S. consulate (or embassy) abroad because you want to travel outside the U.S., this application will not be a mere formality (which is typically the case with L-1s or H-1bs). Instead, the consulate will conduct their own thorough, independent review of your E-2 petition and decide if you deserve a E-2 visa.
• E-2 applications, filed at consulates, are governed by consular specific rules and regulations. In contrast, USCIS does not have detailed rules and regulations for E-2 packets. Consequently, you cannot just use your USCIS petition (if you previously changed to E-2 status in the U.S.), but have to modify and change this petition so that it meets the regulations of the consulate.

Where to Apply for E-2 Investor Status or an E-2 Visa

Now that we understand the many unique features of E-2 visas, let’s return to the original question, where should I apply? The answer to these question hinges on the following factors:

Are you outside of the U.S.?

If so, your only option to enter the U.S. in E-2 status is to first apply for a E-2 visa at the consulate. However, some potential E-2 investors prefer to first enter the U.S. in B-1 status (business visitor or visa waiver/ESTA status) first, to analyze their investment and take initial steps towards establishing their new venture. After coming to the U.S., the investor would then have the option of changing to E-2 status with USCIS, or returning to their home country for a E-2 visa (Note: this trajectory is complicated and a full discussion is beyond the scope of this article.)

Are you in the U.S., but intend to travel outside of the U.S. in the near future?

If so, you will be required to obtain a E-2 visa to return to the U.S., so you might as well skip the USCIS application step (to change to E-2 status while already in the U.S.) and apply directly at the consulate or embassy in your home country.

How strong is your E-2 application and what is the reputation of the U.S. consulate or embassy in your home country?

Some consulates are particularly strict about certain E-2 requirements, such as the amount of money that must be invested. In such a case, presuming there is no immediate need to travel abroad and you are currently in the U.S. in another status, it might be best to change to E-2 status first in the U.S., and then grow your business to a size that easily meets the E-2 requirements before traveling to the consulate to obtain your E-2 visa.

These are just a few of the concerns related to where to apply for E-2 status. E-2 visas are one of the most complicated types of visas, so advice from an experienced immigration lawyer is highly recommended. If you are interested in exploring E-2 visas, give us a call at 303-872-6985, and be sure to learn more on E-2 Treaty Investor Visas in our resource for non-immigrant visas.