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What you need to know about the E2 Visa Renewal Process

The E2 Visa Renewal Process

Immigration lawyers are oftentimes asked about the E2 Visa and the E2 Visa Renewal Process.

The E2 Visa presents a fantastic opportunity for foreign national entrepreneurs to start a business in the United States. However, it does come with some drawbacks. One drawback is that there is not a clean path that will take you from E2 visa to green card. Another drawback is that the initial validity period is oftentimes quite short. The good news is that there is no limit to the number of times that your E2 Visa can be renewed or extended. If you continue to meet the E2 Visa requirements, you will continue to be able to operate your business in the United States.

This post discusses the initial validity period of the E2 visa and options for extending and renewing it.

The Initial Validity Period of the E2 Visa

When your E2 Visa is initially issued, you usually need to start thinking about the renewal process right away. This is due to the fact that the initial E2 Visa validity period is relatively short. If the adjudicator has some concerns about the future success of your business, the E2 Visa may be issued for an initial period of just one year.

This may happen when the adjudicator questions whether your business will require employees. If this is the case, they may give you one year to prove that your business is viable. Likewise, if your investment is relatively small, the US government may question whether your investment  is large enough to support the successful operation of your business.

Having a one year period of validity is very difficult for startups. As anyone who has started a small business can attest, it takes a lot of time to build momentum and establish a successful business. At the one year mark, many businesses simply can not show a significant amount of profit.

Fortunately, most entrepreneurs who are in the US on an E2 Visa have an initial validity period of two years. While this still does not give you much time, it does put you in a better position to establish your business and provide proof that it is heading in the right direction.

Why is the E2 Visa Initial Validity Period Short?

The US consulate in London has explained the reasoning behind the relatively short two year validity period for the E2 Visa. They stated that they issue the first E2 Visa for two years because most of the businesses that they see initially are “relatively small and small businesses are volatile and often do not exceed.” It is hard to argue with this reasoning. The harsh reality is that most small businesses do in fact fail. As an E2 investor you should be aware of this fact and focus on becoming profitable as soon as possible.

Two Options for Renewal and Extension

When you desire more time on your E2 Visa, you will have the option of extending it through USCIS or by traveling abroad and re entering the US.

USCIS Extensions From Within the US

For USCIS extensions that are requested from within the US, you will file:

  • Form I-129(petition for nonimmigrant worker)
  • Form I-539(application to extend or change nonimmigrant status) for family members of the principal E2 Visa Applicant
  • Your I-94(arrival and departure record)
  • Your original I-797(if your E2 visa has been extended in the past)
  • Copy of your passport including your E2 Visa
  • Letter explaining why an extension is required
  • Copy of business and personal tax returns for the past two years
  • Proof that you have maintained your nonimmigrant status
  • Proof that you are physically present in the US

 

Supporting Documentation at the time of E2 Visa Renewal/Extension

Regardless of whether you extend through USCIS or renew through the Consulate, you will have to prove that you still meet the requirements of the E2 Visa. The basic requirements of the E2 Visa for an investor are that:

  • You made a substantial investment in a commercial enterprise in the United States
  • The investment is “at risk” which means that it is subject to partial or total loss
  • Your invested funds were lawfully obtained
  • The business is not marginal

Marginality is oftentimes a Problem for E2 Visa Extensions

One problem that E2 Visa holders oftentimes encounter at the time of extension relates to the issue of marginality. The marginality requirement basically means that your business cannot solely support you and your family. At the initial stage in the process, you can use projections to demonstrate that you will need employees. However, once you have been operating your business for a period of time, the US government will be less likely to accept projections. They will want to see concrete proof that your business is growing, generating revenue and employing US workers.

If your business does not yet have sufficient revenue to employ workers, then you will have a hurdle to overcome. One popular way to overcome this hurdle is to infuse more capital into the business. If you invest additional capital, you can provide proof of the investment through bank documentation. You will also have to provide documentation that demonstrates that the funds were lawfully obtained. Finally, you will have to show that the funds are committed to the enterprise and specify how the funds will be used. This can be accomplished by presenting an updated comprehensive business plan.

Timing of the E2 Extension through USCIS

A lot of people ask if they will be able to run their business after the I-94 expires while their I-129 is pending. The good news is that you will be able to continue running your business while the petition is pending. When you file for an extension before the I-94 expires, you are automatically given an additional 240 days. However, if you file after the I-94 expires, you can stay only 40 days pending the decision.Therefore, it is in your best interest to file your E2 Visa extension before your I-94 expires to avoid the scenario of you having to leave the US while your wait for your petition to be adjudicated.

 

Applying for an E2 Visa Renewal at the Consulate(The Preferred Method)

Most business immigration lawyers advise their clients to renew through the consulate. The reason being that consular renewals tend to be more convenient, faster(unless premium processing is requested) and less costly.

Those who wish to renew their E2 visa through a US consulate abroad may do so by following these steps:

  • Submit form DS-160 with the Department of State
  • Pay the DS-160 fee(currently $205)
  • Complete the DS-156E and organize supporting documents
  • Present documents(showing that you still meet the requirements of the E2 Visa)
    • The documents and the order in which they must be submitted vary depending on the consulate. Please check with the consulate where you will be applying for specific instructions.
  • Attend an interview at the consulate

Conclusion

As you are running your business in the United States it is important to keep the E2 Visa requirements in mind as you plan the future of your business. Even if you are given years to run your business, the expiration date of your E2 Visa will oftentimes sneak up on you. Meeting the requirements for the E2 Visa Renewal Process is not always easy. Therefore, you should plan ahead and contact an immigration lawyer who can offer advice that is tailored to your particular situation. With proper guidance you will increase your odds of a successful E2 Visa Renewal Process!

E2 Visa Renewal FAQ

The E2 Visa allows foreign national of certain countries to enter the US to run a for profit business in which they have made a substantial investment. The process begins by applying through a foreign consulate or by filing form I-129 with USCIS. 

The E2 Visa is valid for three months to five years (depending on the country of origin).

Good news! An E2 Visa can be renewed indefinitely as long as you continue to meet the requirements.

It is difficult to predict how long it will take to renew the E2 Visa since consulates have varying case loads to manage. However, it generally takes two to four weeks.

 

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