PROCESSING TIME: E-2 V. EB-5
A change of status to E-2 can be completed in as little as 15
days using USCIS’ premium processing service. If approved,
the result will be E-2 status for two years. There is no personal
interview for a change of status.
"A popular alternative
for some recent China
EB-5 investors...is the
L-1, the intracompany
transferee in a
managerial or
executive position."
The E-2 visa application process, including a personal interview,
can be completed in most cases within six to eight weeks,
depending upon the particular U.S. embassy or consular post
handling the visa application. 1
The maximum validity period for an E-2 visa is five years, but it
can be shorter depending upon the reciprocity reports for the
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EB5 INVESTORS M AGAZINE
applicant’s country of nationality. Each entry on an E-2 visa is
valid for two years of E-2 status in the United States. Since I-526
petition processing by USCIS averages about two years and
does not allow concurrent filing of an I-485 adjustment of status
application, an E-2 visa will allow an investor to enter the United
States much more quickly and begin developing and directing
the operations of the business.
E-2 IS NOT A DUAL INTENT VISA
E-2 status or visa extensions while an I-526 petition is pending
may be complicated because of the requirement to disclose,
either on the I-129 in the case of a status extension, or, on the DS-
160 in the case of a visa renewal, the existence of an immigrant
petition. A USCIS officer or State Department consular official
could take the position that an E-2 treaty investor applicant is
ineligible for a nonimmigrant visa category under INA 214(b)
because the applicant is an intending immigrant.
The response to such an official should be that 8 C.F.R.
214.2(e)(5) states: “An application for initial admission, change
of status, or extension of stay in E-2 visa classification may
not be denied solely on the basis of an approved request for
permanent labor certification or a filed or approved immigrant
visa preference petition.”
Note that this argument should be made in the case of an