By: Mustafa Cetin
E-2 is a nonimmigrant visa category and alien investors holding this status are nonimmigrants. These investments can last a long time and holders of this status should be reminded of a few key points. Immigration laws define an E-2 holder nonimmigrant alien as one who:
- Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
- Is seeking entry solely to develop and direct the enterprise; and
- Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status.
E-2 status directly depends on the entity controlled by a status holder. Any “substantive change” affecting the entity must be approved beforehand by USCIS. Furthermore, a substantive change without prior approval terminates E-2 status.
A “substantive change” is defined as a fundamental change in the employing entity’s basic characteristics, such as, but not limited to, a merger, acquisition, sale of the division where the alien is employed, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.”
This definition is broad, and consequences are dire. If the entity which was the basis of your E-2 status underwent changes that could be considered a “substantive change” under this definition, we recommend you seek consultation immediately or if you plan to make a change, seek counsel in advance.
Going out of status might have a serious impact on your future. If you accrue unlawful presence you may be subject to three years or ten years bars to admission. If you receive a bar to admission: you are not eligible to apply for a visa, admission, or adjustment of status to permanent residence.
On the other hand, going out of status might affect your eligibility for other remedies such as asylum. A change of circumstances like this is an exception to the requirement of filing for asylum within 1 year of entry. However, an asylum application must be made within a reasonable time which would require a filing as soon as possible.
You can contact us by phone at (713) 589-2085 (TX) or (201)-210-8240 (NJ) or by email at [email protected] for further questions or advice.