An E-2 visa allows foreign nationals to live, work, and set up businesses in the United States. The key benefit of the E-2 visa is the fact that holders can apply for unlimited extensions and the fact that an investor can come along with their family to the U.S. under this visa category as well. However, getting an E-2 visa under Trump is different than it was before the administration began.
To get this visa, you are first required to meet all E-2 visa classification eligibility requirements. Furthermore, you should be coming to the U.S. with the sole purpose of developing the operations of an enterprise that you have invested in, or of a business that you intend to invest substantial capital into. Additionally, you must be ready and willing to hire U.S nationals for the business.
Employees of the investor can apply for an E-2 visa, but to qualify, he or she must have some sort of supervisory or management role in the business. Standard laborers or unskilled employees do not qualify for this type of visa. They do not have to be of the same citizenship as the investor.
E-2 Visa Reforms, Changes, and Updates Under Trump
Since the Trump administration began making changes to immigration law, many foreign nationals have been worrying about the E-2 visa’s “climate” and the current administration’s impact on the approval frequency and chances of E-2 visa applicants.
Read on to understand the processing trends of E-2 visas that have developed over the last two years.
Is it harder to have an E-2 visa application approved under the Trump administration?
E-2 visa denials have not increased significantly since President Trump has assumed office. However, the scrutiny of applications today is more than it used to be, and there has been an evident shift in what adjudicators focus on. For instance, the “Buy American, Hire American” focus has made examiners rigorously question the need for E-2 employees in situations where U.S. workers are able and available to carry out similar tasks.
Examiners have also increased their focus on the salaries of E-2 employee managers and raised questions when these salaries seem to be set too low. In such cases, examiners suspect that the person in question may not be a manager. This may happen if they do not earn a salary commensurate with a career or responsibility level expected of a manager.
Even with the required qualifications and the increased scrutiny, the approval rate for an E-2 visa application remains above 95%. If you are passionate about investing and working in the U.S., you should not hesitate to apply, as past results do not always predict future outcomes.
What can I do to increase my E-2 visa approval chances?
The approval of an E-2 visa under Trump is contingent on two significant factors: the initial investment and job creation.
For example, a $200,000 investment in a business with more than five employees will immediately improve the probability of success of your E-2 visa application. This is different from other cases, such as if you intended to start up a business worth $50,000 or less and without employees.
In simple terms, the more money you are willing to invest and the more jobs you can create, the higher the chances of your E-2 visa approval. Your odds will improve further if you have had an opportunity to create or sustain jobs in the U.S. before applying.
Is the Trump Administration Targeting E-2 Visas? Are E-2 Visas Under Attack?
The short answer is, not really. Trump’s administration has increased the number of denials for certain visas and implemented a policy that makes certain non-immigrant and immigrant visa categories harder to get, but not the E-2 visa. The H-1B visa, on the other hand, is a remarkable example of a visa that has received a lot of scrutiny.
One reason why E-2 visas have not been targeted is that the premise of these visas is that they create jobs for U.S. nationals. The administration argues against other visa categories such as L-1 and H-1B visas that tend to take jobs away from U.S nationals.
For the applications of E-2 visas, the USCIS has begun conducting site visits to confirm the existence of an applicant’s business. In addition, there has been at least one consulate performing checks on businesses halfway through any given visa issuance period.
Should I Have U.S. Workers Before Applying for an E-2 Visa?
Before Trump, E-2 visa applications for business startups were mainly approved based on a business plan, even though hiring had not started yet.
While a great business plan will still get you an E-2 visa today, having at least one U.S. employee before applying will enhance your chances of success. This especially applies to consulate applications and comes from the “Buy American, Hire American” focus. Before Trump took office, consulates were more likely to give the benefit of the doubt to an applicant when hiring for a start-up, but this is no longer the case.
In simple terms, having U.S. employees on the first day is not mandatory, but is highly recommended.
Should I have a commercial lease to get an E-2 visa? Is using a home office acceptable for an E-2 visa application?
On this, nothing has changed. When applying for an E-2 visa, investors need to have a leased office or warehouse space in the U.S. to accommodate inventory and employees.
However, one common question that frequently comes up is this: can an E-2 visa applicant use a home office? The answer to this is: not likely. The government looks for a legitimate commercial lease that can accommodate workers running the business. Hence, having a home office or a residential garage will not favor your application.
How long does an E-2 visa last under Trump’s administration?
An E-2 visa lasts 2 years for the initial period of stay. However, the visa can be extended for 2 years at a time. This will only apply if the business is successful, and the visa holder can continue to extend the visa an unlimited number of times.
Dependents of the visa holder will also benefit from extensions granted to the principle holder. In many cases, simply leaving the country and returning to the U.S. will grant an extension to you as well as your dependents and employees.
Has Trump’s administration brought any changes to E-2 visa renewals?
No significant changes have been introduced for E-2 visa renewals over the last few years. As long as you have a running business with U.S. employees, you have a decent case for your E-2 visa renewal.
Contrary to this, there has been a remarkable change related to USCIS filings. In the past, the government used to give deference for USCIS approvals, and if nothing had changed during the renewal period, the prior approval would not be reevaluated. Trump’s administration has introduced a policy memo that does away with this policy that gives deference to prior approvals. This means that all USCIS petition submissions today are adjudicated and evaluated from the ground up once again, from scratch.
Are there changes in E-2 visa requirements?
There are no changes to E-2 visa rules, and the submission information required remains the same. With much scrutiny on applications, though, applicants should strive to do more rather than less.
As stated earlier, clients who spend more as far as total investments are concerned and are able to hire at least one U.S. employee have a higher chance of getting an E-2 visa under Trump.
What changes have consulates made in their E-2 visa application processes?
Many consulates have not made significant changes on their E-2 visa applications. However, there are a number of common trends that have developed. Consulates have been moving fast towards electronic submissions. These submissions have file size limits, and their page restrictions vary from 40 to 100 pages. Applications have specific guidelines as well on what applicants need to do and what not to do, as well as an advance review prior to scheduling an interview.
Before applying, it is best that you first check on local consular websites. Do this to make sure that you do not miss minor yet essential changes in application guidelines and requirements.
Do E2 visas require more investment? What amount of investment will get me an E-2 visa?
For E-2 visas, the typical investment required is $100,000, and this has not changed. While some changes under FAM (Foreign Affairs Manual) have made investment amounts under $100,000 acceptable, consulates are scrutinizing such investments more than they were before.
How Long Does It Take to Get an E-2 Visa?
Over the last two years, the adjudication time for E-2 visas and other visas has increased. The processing time for such visas can be as much as 45 business days.
For instance, the London U.S. consulate often adjudicates petitions in 45 business days, as opposed to their former 30-calendar-day timeline. A number of consulates, such as Toronto, have not changed their visa processing times but, generally speaking, E-2 applicants today wait longer.
For USCIS filings, applicants may opt for premium processing to have their E-2 visa applications adjudicated in as little as 15 calendar days.
How Our Immigration Attorneys Can Help
While the E-2 visa under Trump has not changed much, that may not be the case in the long term. If you are concerned that this may have an effect on your immigration plans, you should consider having an expert immigration lawyer review your case and help you make the best decisions.
Our immigration attorneys offer expert guidance on applying for E-2 visas. We also handle transfers and extensions for individuals as well as small businesses. Contact us today to set up a confidential and no-obligation consultation on your legal options.