As an E-2 visa holder, you have already been identified as an investor or an employee of an investor from a country that maintains a treaty of commerce and navigation with the United States who has invested significant capital in a business within the U.S. If the allotted amount of time given to you by your E-2 visa is insufficient to accomplish your goal in the U.S., filing for an E-2 visa renewal is the next step.
How Long Can You Stay With an E-2 Visa?
If you have an E-2 visa, you have been granted an initial two-year period of stay within U.S. borders. Should you require more time, an E-2 visa renewal, if granted, will grant you two more years per extension. It is important to note that you must prove your intention to depart upon the expiration of your E-2 visa. If you depart the U.S. and return within the confines of your visa, you are normally granted a two-year readmission period upon your return. If this is the case, you will not need to file another I-129.
How to File for an E-2 Visa Renewal
There are two ways of getting an E-2 visa renewal or extension depending on your location at the time of filing the renewal. You can choose to process it in the United States through USCIS or travel abroad and renew the visa at a U.S. consulate or embassy. Each of these two processes has its own advantages and disadvantages, which is why you will need to weigh your options and choose the one that best suits your needs.
Getting E-2 Visa Renewal Through a Consulate Abroad
The consular processing renewal option is preferred by many E-2 visa holders because it can be more convenient and less expensive. To renew your E-2 visa via consulate processing, you will need to follow the instructions at the consulate and submit the required documents. The documentation order may vary depending on the consulate in charge. In general, however, the typical required steps and documentation are as follows:
Step 1: Complete the Nonimmigrant Visa Electronic Application (Form DS-160)
This is an online application form that must be submitted electronically. While completing the form, you will need to select the consulate you are to apply from as the location for your application. For instance, if you are going to request your E-2 renewal at a U.S. consulate in London, you must enter London as the location of your application. Keep in mind that a separate Form DS-160 is required for each person accompanying you. Therefore, if you have relative accompanying you, you will have to complete the form for each of them.
Step 2: Register and Pay the Application Fee
Register at the consulate or embassy website online and pay the visa fees for yourself and each of your family members accompanying you.
Step 3: Submit Your Application with Supporting Documents
Email your application and supporting documents to the consulate or embassy. You must follow the instruction for submission carefully to avoid incorrect submission. The consulate will not process an incorrectly submitted application. Here are the required application and supporting documentation for an E-2 visa renewal:
- Form DS-160 barcode confirmation pages for you (the principal applicant) and each member of your family
- Receipt showing payment of the non-refundable application fees
- Completed Form DS-156E, Nonimmigrant Treaty Trader/Investor Application. This is only for you (the principal applicant)
- If you are going to be represented by an attorney, you will need to submit Form G-28, Notice of Entry of Appearance of Attorney as Representative, along with the phone number and email address of the attorney.
- If you are not the business owner but an employee, you will need to include a job letter from the company.
- A cover letter detailing how you and your investment continue to qualify for E-2 status.
- Documentation of changes in ownership of the business, if applicable.
- All 1099s and/or W-2 for the last two tax years
- Profit and loss statements for the previous and current calendar years
- Documentation of major new investment in the business (if any)
- Documentation (purchase agreements and closing documents) of newly purchased additional businesses, if applicable.
Again, you may be asked to provide more documents, depending on the consulate-specific requirements. Ensure that you read the instructions on the consulate website carefully and submit all the required items accordingly.
Step 4: Receive Receipt Notice
Once the embassy or consulate receives your application, an email will be sent to you to confirm the receipt. If it is not well-formatted or it is incomplete, the application may be returned to you. If there is a need for additional information, you will also receive a notice for more evidence.
Step 5: Attend an Interview
If your application is filed correctly with all the necessary supporting documents, the embassy or consulate will schedule you for a one-on-one interview with a consular officer. After your interview, you will know whether your application is approved or not. If your case is approved, you will receive your passport and visa from the embassy within a few working days.
E-2 Visa Renewal in the United States through USCIS
If leaving the United States and returning under a new two-year period is not possible, then an E-2 visa renewal is required. It is recommended that you consult a professional immigration attorney as he/she can help you organize all relevant documents necessary for your extension application.
With or without an attorney, there are several items that must be submitted to the USCIS. If you are an employee rather than an investor, then you may disregard the last ten items on this list.
- A cover letter that details the nature of your investment or business as well as your employer. The letter must address all of the eligibility requirements for your initial E-2 visa).
- You must submit another I-129 “Petition for Nonimmigrant Worker”.
- Form I-539 “Application to Extend or Change Nonimmigrant Status”.
- If you have already been approved for an E-2 visa renewal in the past, provide a copy of your Form I-797 “Notice of Action”.
- Should you choose to be represented by an immigration lawyer, you will need to submit a G-28 “Notice of Entry of Appearance of Attorney as Representative” form. You will also need to submit the contact information for the said attorney.
- If you are an employee, submit a job letter that came from the company that hired you explaining why this E-2 visa renewal is necessary.
- A color copy of your passport biography page, U.S. entry stamps, U.S. visas, and your I-94
- Your résumé or CV.
- All statements and schedules for tax returns that have been signed and given to the IRS
If you are a business owner, you should include any Articles of Incorporation or Organization, ownership validation, and a report on any changes in ownership since the issuance of your initial E-2. Additionally, you will need:
- Evidence of a new investment that would warrant your E-2 visa renewal.
- Evidence of funds placed in escrow if you have done so for the initial purchase of the business for which you are petitioning. This applies only if you are petitioning for your first renewal.
- An organogram showing the structure of ownership within the business
- Color photocopies of the biographical sections of all passports belonging to the parent company owners.
- The most recent annual report copy
- Any stock trading information that is recent
- Evidence of a promissory note if applicable.
- Any licenses that can be considered relevant to your enterprise.
- Bank statements for the past twelve months concerning your business.
- W-2 forms and any 1099 forms from the last tax year.
- If you are no longer the owner of the company that the USCIS approved for your E-2 visa, you need to provide the documents required for first-time investors.
Consular Processing Renewal vs USCIS Processing
Timing is the major factor in the difference between USCIS and consular processing. Both processes have some possible outcomes that may prolong the process. While consular processing can sometimes be more convenient and faster depending on your situation, there is a possibility of being issued administrative processing at the consulate. Administrative processing means the consular officer needs more time and/or information before a decision can be made on your case. This may significantly prolong the process longer than anticipated.
For USCIS, there may be some issues if you fail to submit your request for an extension within the timeframe. Generally, if you submit your extension petition before the expiration of your I-94 arrival/departure card, you can continue to run your E-2 business while the petition is pending with the USCIS thanks to the additional 240 days given.
However, if the petition is submitted after the expiration of the I-94, you will only have 40 days to stay while the USCIS decision on your case is pending. The best way is to ensure you submit your petition before I-94 to avoid having to leave the U.S. while the petition is pending.
What if Your Extension is Denied?
If your E-2 visa renewal is denied, you should first seek consultation from one of our attorneys. If you have filed for an extension before your I-94 departure date, then you will be permitted to stay until that date as previously agreed upon by you and the USCIS.
Should you remain in the U.S. after that date you will be at great risk for deportation, which may result in a temporary or permanent bar from future visits to the U.S. If you traveled with a spouse or dependent children, they will need to leave as well as their stay in the U.S. is contingent upon yours.
The best advice is to comply and adhere to your I-94 departure date and to file for your extension at least four (4) weeks before that time. You will be allowed to remain for forty (40) days after that date as long as your E-2 visa renewal petition is still pending.
However, prepare for departure because upon denial or the passing of those 40 days, you will need to return to your home country immediately. There you can file another visa application through your country’s consulate.
Marginality Requirements and E-2 Visa Extension
Meeting marginality requirements is the major challenge E-2 visa holders face when requesting their status extensions. What marginality means for the E-2 visa is that the business must be profitable enough to be beyond solely providing you and your family. While job creation is not specifically mentioned as part of E-2 visa requirements, it is still an essential way to prove that your business is not marginal.
During the initial application process, you could use projections to demonstrate that your investment will eventually employ workers. Now that you have been operating the business for some time, USCIS would want to see evidence that the business is growing and contributing to the country’s economy. They may require concrete proof of the employees you have hired, revenue generated, and other proof that demonstrates the growth of the business.
If, when you request an extension or renewal, you cannot provide some or all of these, you should expect some hurdles in your renewal processing. One way to overcome this is to put more capital into the enterprise. You can then use the proof of the investment (such as bank statements) to demonstrate that your business has not been stagnant since the initial visa approval.
Additionally, you will need to provide evidence to show that the funds were not unlawfully acquired. You will also need to demonstrate how the funds are irrevocably committed to the E-2 business and how they will be specifically used. A comprehensive business plan can also help prove your case in these scenarios.
Filing Procedure Recap
To summarize, if your enterprise requires your continued stay within the United States, you should first contact an immigration lawyer if you have been operating without one. He/she will most likely recommend that you leave the U.S. and return within the limits of your I-94 departure date to receive a two-year period extension without requiring another I-129 form.
Alternatively, you can petition for an E-2 visa renewal by submitting a second I-129 to the USCIS along with the relevant documents pertaining to your E-2 status as stated above. It is also advised that you keep up to date with any new legislation concerning your visa so you can avoid any delays in the petitioning process.
How Our Immigration Attorneys Can Help
It is best to approach your E-2 visa renewal process with care as a denial or delay can significantly impact your investment. This is why you need to work with an experienced immigration lawyer.
At our firm, we have a team of highly experienced E-2 visa attorneys that can help you with the renewal process. We will advise you on the best option for your renewal and also help you file your petition with all the necessary supporting documents. Working with us will not only improve your chances for approval, but it can also expedite the process. You can count on us for all your E-2 cases, such as visa renewal, transferring your current visa to E-2 class status, as well as many more immigration cases. You can book an appointment with one of our E-2 immigration lawyers today by simply filling out this consultation form.