E-2 Visa Transfer: How to Transition to a Green Card or H-1B Visa

In the world of immigration law, it is not uncommon for people’s circumstances to change rapidly while in the U.S. Occasionally, these changes may interfere with your current nonimmigrant status or provide you with the opportunity to get a green card. If that happens to you while under E-2 status, it is often a good idea to get an E-2 visa transfer status.

E-2 Visa Background

If you are interested in using the E-2 visa as a vehicle for a green card, here is a quick breakdown of the requirements. To qualify for the E-2 Treaty Trader visa, you must:

• Be a national of a country that maintains a treaty of commerce and navigation with the U.S.
• Have invested or plan to invest a substantial amount of capital into a new or existing bona fide U.S. enterprise.
• Have the intention of entering the U.S. with the sole purpose of developing or advancing that enterprise.
• Own at least 50% of the enterprise or hold operational control through a managerial position

The phrase bona fide is used by the USCIS to indicate an enterprise that is or will be real and actively doing business, meaning that it is exchanging goods or services for profit.

There is no official set amount of funds that must be invested for an E-2 visa. The amount tends to vary depending on the size of the enterprise, and must simply be a substantial amount. Typically, a substantial amount is in relationship to the total cost of either purchasing an established enterprise or establishing a new one. This is to ensure that the treaty investor’s financial commitment to the successful operation of the enterprise is also sufficient. This means that, if you are investing in a large restaurant or hotel chain, you may need to invest much more than if you were purchasing a small shop.

You must be from a treaty country. Keep in mind that this does not require you to be currently living in the treaty country; you only need to be a citizen of a treaty country. If you are not sure whether or not your country is a treaty country, check the list provided by the Department of State. 

Why Consider an E-2 Visa Transfer?

As far as nonimmigrant visas go, the E-2 has plenty of advantages. It does not require a certain level of education and you do not need to have an employer sponsor you. In addition, the E-2 visa can be renewed indefinitely provided that you are still advancing the original enterprise.

Transferring E-2 Visa to H-1B Visa

There may be situations that make you ineligible for an E-2 visa renewal. For example, if your enterprise is sold, confiscated, or otherwise terminated, you may not be able to renew and may need to get an E-2 visa transfer. One common route to take is the H-1B visa.

The H-1B visa is an ideal path for many immigrants to take due to the relatively low requirements needed to be eligible. However, this visa comes with its share of limitations. The H-1B is only valid for a maximum of six years and cannot be renewed after that. You must also have a sponsoring employer and your petition will be subject to an annual limit of available visas.

Transferring E-2 Visa to Green Card

Fortunately, the E-2 visa is considered a dual intent visa, which means that you can legally pursue legal permanent residency (green card status) while under this status. Many people choose to get an E-2 visa transfer to green card status to make their residence in the U.S. more permanent.

Click below to read how we transformed an Argentine pilot’s dream into reality by securing an E-2 visa through an investment in the U.S. trucking industry.

E-2 Visa Transfer to H-1B: Process and Requirements

Unfortunately, there is no official E-2 visa transfer process for the H-1B. You must apply for the H-1B from scratch like everyone else. The first step when you transfer your E-2 status to H-1B is to make sure that you meet the qualifications for the new status.

• You must have at least a bachelor’s degree in the field in which you want to work. If you have relevant work experience, it may be used to substitute. Usually, one year of study at a university equals three years of work experience.
• Your job must be considered a specialty occupation according to USCIS standards.

If you qualify, you need to find an employer to act as your sponsor. While you were able to self-petition for the E-2 visa, you are not able to do so for the H-1B. This sponsoring employer must offer you a specialty position and file the I-129 petition on your behalf on April 1st of the year you plan to start working. Your employer will also need to obtain a Labor Condition Application for you as well.

Once your petition is filed, it will go into a lottery for random selection. This is because the H-1B is so popular that more people petition each year than there are visas available. If you have a master’s degree, you have a better chance of being selected. Also, if you work for a nonprofit organization, institution of higher education, or governmental research center, you will be considered cap-exempt.

If your petition is selected, it will be evaluated to ensure that you are qualified for the E-2 visa transfer to H-1B status. If your petition is approved, then you can begin working as an H-1B worker no earlier than October 1st of the year that you petitioned.

Because the dates for the H-1B are so strict, you should be sure to plan so that there is no gap between your E-2 visa expiration and your H-1B start date. Failing to take this into account could result in you being considered “out of status” during the gap which could end in severe consequences.

Exploring Green Card Options for E-2 Visa Holders

If you are interested in transferring your E-2 status to become a legal permanent resident, you must first identify which green card best fits your immigration situation. Here are some common employment-based green cards for those on E-2 and even H-1B status:

Whichever you choose, you will need to have a petition sent (either by you or your sponsor) to the USCIS. Once USCIS receives your petition, you need to wait until your priority date (the day that the USCIS gets your petition)  is current with the final action date given in your category and country according to the monthly visa bulletin.

After that, you will be able to file an I-485 application to adjust from E-2 to green card status.

Understanding E-2 Visa Dual Intent

The E-2 visa is not considered a dual intent visa, as it is considered a non-immigrant visa. This means that E-2 visa holders have a single intent to travel to the U.S. and then return to their home country once their visa expires. It is critical as an E-2 visa holder that you prove to the USCIS that you have no intention of staying in the U.S. permanently when you apply. This is because E-2 treaty investors are given certain diplomatic rights and immunities that must be waived if they become legal permanent residents.

To waive these rights, you must submit an I-508 Request for Waiver of Certain Rights. This should be submitted alongside your green card petition. Without this form, you will not be able to adjust your status as an E-class nonimmigrant. Speak with your immigration attorney to ensure that you are taking the correct course of action when it comes to an E-2 visa transfer to a green card.

Understanding Your Options for Transitioning from E-2 to H-1B or Green Card

E-2 visa holders can switch to green cards with careful planning and a thorough understanding of available options. Whether it’s through the EB-5, EB-2, or EB-3 visa categories or choosing the green card that best aligns with your personal and business situation, knowing which path best fits your situation is essential to ensure you make the right decision.

Understanding the specific requirements, such as investment amounts of employer sponsorship, will help guide you through the application process. With the right guidance and preparation, you can successfully navigate the transition and secure your status as a legal permanent resident in the U.S.

Schedule a Consultation

Frequently Asked Questions for an E-2 Visa

Can an E-2 visa holder apply for a green card?

Yes, E2 visa holders can apply for a green card by qualifying under a separate immigrant category to adjust their status to a permanent resident.

Does the E-2 visa have dual intent?

No, the E2 visa does not have dual intent. An E-2 visa holder must show their immigrant intent to return to their home country after their visa expires.

What is an E-2 visa change of status?

An E-2 visa change of status refers to the process of transitioning to another non-immigrant status from an E-2 visa. However, when it comes to changing your status to a green card, it’s a different process.