Can You Apply for the E-2 While Visiting the US?

Hi, my name is Ben Frear, and I’m an immigration lawyer focused on helping entrepreneurs. A big part of my practice involves helping foreign nationals apply for the E-2 visa, a visa that allows qualifying entrepreneurs to run a business in the US after making a substantial at-risk investment.

One question I frequently receive from clients is, “Can I apply for the E-2 while visiting the United States?” In this post, I’ll address that question and explain the potential benefits and risks of doing so.

Is It Possible to Apply for the E-2 While Visiting the US?

Yes, it is possible to change your status from a visitor to E-2 while you are in the United States, as long as you haven’t violated your current status and entered the country on a visa (not through the Visa Waiver Program, also known as ESTA). However, the bigger question is whether you should take this approach.

For most clients, I advise against changing status while in the US. Let’s take a closer look at why.

Why Changing Status Might Not Be the Best Option

The primary reason I don’t recommend this path is that while changing your status allows you to stay in the US for two years, you won’t receive an actual visa. This is a critical distinction. Without an E-2 visa in your passport, you cannot re-enter the US in E-2 status after leaving (without first obtaining a visa).

In practical terms, this means that after going through the lengthy and often complex process of changing your status from visitor to E-2, you’ll still need to apply for an E-2 visa through a US consulate before you can travel internationally and return to the US in E-2 status. The consular post will review your case as if it were a new application (de novo), meaning they can refuse your visa application even if USCIS approved your change of status.

When Should You Consider Changing Status?

There are only a few circumstances in which changing status might make sense, the main one being interview availability. If the US consulate in your home country is experiencing extreme backlogs, changing status might be a more practical option. However, it’s essential to approach this with careful planning.

The Right Way to Change Status

If you decide to pursue a change of status, there’s a correct way to do it:

• Enter the US with genuine intentions. This means you come to the US intending to stay for a short period as a business visitor, not with the sole purpose of changing your status.
• Set up your business while you are in the US. This might involve opening a business account or signing a commercial lease. Ensure your business is fully set up but do not begin working for the company.
• Apply for the change of status at the right time. Ideally, you should wait at least 90 days after entering the US before applying for a change of status. This reduces the risk of being flagged for misrepresentation.

The Wrong Way to Change Status

Now, let’s talk about what not to do. The wrong way to change status would involve entering the US with the intention of applying for E-2 as soon as possible and rushing through the application process. Not only does this increase the likelihood of application errors and denials, but it could also lead to a finding of misrepresentation if your true intentions at the time of entry were to change status immediately.

Final Thoughts: Applying for the E-2 While Visiting

So, while it is possible to change your status from visitor to E-2 while you are in the United States, it’s typically not the best course of action. If you do decide to pursue this path, careful timing and strategic planning are essential to avoid potential pitfalls and misrepresentation issues.

Disclaimer: This post is for informational purposes only and should not be considered legal advice. If you’re considering applying for the E-2 visa, I recommend consulting with a qualified immigration attorney who can provide guidance tailored to your specific situation.

Thanks for reading, and best of luck as you explore your E-2 visa options!