Should I submit an E-2 petition as a change of status with the USCIS or should I apply abroad at a U.S. Consulate?
The answer depends on your specific situation, but there are important considerations with E-2 visas that you should know:
If you get an approval of E-2 status with the U.S. Citizenship and Immigration Services (USCIS) and travel abroad, you will have to reapply with a new application for an E-2 visa at a Consulate. This is the most significant quirk with E-2 classification. Unlike other visa classifications, like an H-1B or an O-1, where you can get a visa with an approval through USCIS, an E-2 approval through USCIS is not recognized by the Consulate and you must reapply with a new application abroad. That means that even if the USCIS approved your case, the Consulate may not approve it. It also means that if you want to have the ability to travel internationally and reenter in E-2 status, you must apply for a visa at a U.S. Consulate. For this reason, it is generally preferable to apply for an E-2 visa at a Consulate than to do a change of status with USCIS, but it really depends on your case and there are times where it might be best to submit an application with the USCIS.
An E-2 change of status is valid for a maximum of 2 years; an E-2 visa has a validity period that depends on your nationality. You have to check the Department of State reciprocity schedule or our user-friendly list to determine how long visas will be issued based on your nationality. Some countries can receive visas for one year; others can receive visas valid for five years. In all cases, however, you only receive status for 2 years when you enter the United States, even on a visa that is valid for 5 years. You will have to leave the United States and reenter in order to receive another 2 years of E-2 status.
If you apply for a change of status in the United States with the USCIS and you are a dual national, you must apply using the nationality of the passport you entered in. If you are abroad, you can choose which nationality to apply for an E-2 visa at the appropriate Consulate. The E-2 visa is based on treaties and eligibility depends on your nationality. Some countries do not have E-2 treaties. For example, if you are a dual Brazilian and Pakistani national, and you enter the United States with a B-2 visa issued in your Brazilian passport, you can now only apply for a change of status based on your Brazilian nationality. While Pakistan does have an E-2 treaty with the United States, Brazil does not, and therefore you would not be able to apply for a change of status here because you are currently in the U.S. based on your Brazilian nationality.
There are many other considerations to take into account when deciding how to apply for an E-2 visa. If you would like to have a comprehensive consultation, do not hesitate to contact us. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn or Tumblr for up-to-date immigration news.
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