impact of changes to the foreign affairs manual

The Impact of Updates to the US Foreign Affairs Manual

For people who reach out to my practice who are not yet super familiar with the E2 visa requirements, I always encourage them to look at the foreign affairs manual that is released by the US Department of State. I tell them this because the foreign affairs manual is kind of like a guide book for US statement department personnel. And since it tells us what the adjudicators will be focused on, it is really helpful.

In 2023, the U.S. Department of State updated parts of this manual related to visa processing for E2 visa applicants and eligible family members who are applying alongside the primary investor. 

So let’s jump in and discuss  the two primary changes to the manual that affect my E2 visa clients and prospective clients.

Update #1: Substantial Investment Determination

One key requirement of the E2 visa is that the applicant investor has to make a “substantial” at-risk investment.  In the past, this requirement would induce a lot of anxiety not only for first time applicants, but also for people who are seeking a renewal of their E2 visas. With this new change to the FAM those who are seeking renewal will be less anxious about the investment at the time of renewal. 

Under the guidance, if an officer has previously determined that the sum invested by an applicant was substantial, the applicant does not need to be reevaluated on this criterion unless there has been a change in ownership.

There are certainly other things to worry about at the time of renewal, but at least applicants can take some comfort in knowing that their investment will not be scrutinized each time they apply for a renewal. 

 Update #2: Changes in the Treatment of Family Members

The State Department also updated its guidance regarding the treatment of spouses and children of E2 visa investors. Previously, the validity period of the visa issued to the spouse and children would match the validity period of the visa that was given to the principal applicant. This worked pretty well from my perspective. But, unfortunately, the State Department will now do things a little differently.

Spouses and children will be subject to the visa reciprocity guidelines for their country of nationality, or the duration of the principal applicant’s visa or authorized period of stay, whichever is shorter.

Now, this isn’t a big deal if everyone has the same nationality or if your spouse or children are nationals of a country that doesn’t have an E2 treaty. In those circumstances, everyone will have the same validity period. 

But let me give you an example of how this may be a problem if your family members have a different nationality.

Ok, let’s say you are from the UK and you are interested in starting a business in the US. As someone with UK nationality, you will be issued an E2 visa that is valid for 5 years if your application is successful. However, your wife doesn’t have UK citizenship. She is Egyptian. The validity period for nationals of Egypt is 3 months! That is a huge difference. So, under this example the investor’s visa will be valid for 5 years and the spouses visa will be valid for a measly 3 months.

Now, it is important to understand that on each entry into the US on an E2 visa, you will receive two years of status even if your visa is set to expire shortly. So three months isn’t quite as bad as it sounds. But it isn’t great, especially if you are someone who needs to travel in and out of the US on a consistent basis.

Conclusion: Changes to the Foreign Affairs Manual

So there you have it. Those are the two biggest recent changes to the foreign affairs manual that affect my clients. If you want to learn more about these changes, I encourage you to check out the manual or reach out to one of the many amazing US immigration lawyers that you can find across the globe.

Thanks for your time!

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Ben Frear, Esq.

Immigration Lawyer for Entrepreneurs

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