US visas are categorised as non-immigrant visas – for visits and temporary and permission to enter the US – and immigrant visas, which allow for US permanent residence. Dual intent visas however exist to allow the visa holder the possibility to become eligible to apply for a US Green Card. Looking specifically at E-2 investors, is the E-2 visa a dual intent visa, leading to a US Green Card?

With an E-2 visa, you are permitted to enter the US on a temporary basis, but can apply to extend your status indefinitely, provided you remain eligible under the E-2 visa conditions. This means your E-2 status can only be extended if you remain active in the E-2 company. It would not be possible, for example, to retire and remain in the US under the E-2 visa.

During the application process for a US non-immigrant visa, applicants will be asked to provide evidence of their intention to leave the US on completion of their E-2 business activity or by the end of their visa duration for example by proving valid and lawful foreign residence.

Any indication at the petitioning stage of an intention to remain in the US under a non-immigrant, visitor visa is likely to result in a refused application. The default position for petitioners should be to assume the adjudicating officer considers you do intend to remain in the US, and you need to convince the official to the contrary through evidence.

Further, attempting to change your status from a non-immigrant visa to an immigrant visa while in the US is likely to cause issues and you will need to provide compelling evidence as to why your intention to remain has changed or was not declared at the time of your initial visitor visa application. Issues with dishonesty or deliberate misrepresentation during the visa application process may be deemed visa fraud and can result in issues with future US visa applications and you potentially being barred from entering the US.

 

Is the E2 visa dual intent?

 

Under the dual intent rules, E-2 visa holders have to follow a more challenging path to US permanent residence than other visa routes. They are prohibited by law from applying for a Green Card through ‘adjustment of status’ – the process of transferring to permenant residence status from within the US until they have  — at least, not without waiving specific legal rights as prescribed under the prevailing Treaty of commerce under which their eligibility for the E2 route is established. Such rights affect important considerations such as tax liability, making it critical to take professional legal advice on your circumstances to understand the full ramifications of waiving your Treaty rights. If you apply for your immigrant visa outside the US, and subsequently enter the country with your new visa rather than your E-2 nonimmigrant status, your E-2 visa rights will be waived.

 

How to apply for a US Green Card

 

In outline terms, the first stage in applying for a US green card is for your sponsor (ie a qualifying US resident or organization) to file an immigrant visa petition on your behalf. If approved, you can then apply for permanent residence in accordance with the availability of immigrant visas under your relevant category.

Should you decide to proceed, you will need to complete form I-508, together with your adjustment application.

 

Employment-based petitions

 

E-2 visa holders require sponsorship for permanent residence. This can be provided by a qualifying US employer.

As the E-2 is dual intent, you will be permitted to remain in the US while your sponsor follows the petitioning process.

Employment-based petitions may require Labor Certification – a protracted and lengthy process to prove your employer cannot hire for your role from the resident labor market.

Recruitment can take around three months to complete to comply with the requirements, and employer’s petition to the Department of Labor can take a further three months to be approved.

 

EB-5 program

 

As an E-2 investor, you may have access to significant capital which you may want to invest in the United States. The EB-5 immigrant category opens up permanent residence to foreign nationals in exchange for investment in specified investment options requiring investments to be made of at least $800,000 for Targeted Employment Areas (TEAs) and upwards of $1,050,000 for investments being made outside TEAs.

 

Family-based petitions

 

If you are able to apply for immigrant status under the family route, ie you have an eligible US citizen or permanent resident sponsor, under the dual intent rules, E-2 visa holders can attain a Green Card without losing E-2 status.

A further complication arises for E-2 visa holders who are both owner and director of their E-2 company, and who are seeking employment-based sponsorship for permanent residence. While US businesses can sponsor employment-based petitions, it must be made clear that you are concurrently the petitioner through the business. Taking legal advice can clarify your rights and options in this scenario.

 

Need assistance?

 

NNU Immigration specialize in the US E2 visa. We can advise on all aspects of the visa, from assessing eligibility, to support with compiling your petition and all required documentation for the initial application and subsequent renewals and Green Card petitions. We can also provide guidance and consideration of alternative US entry routes where required.

We can also support with applications for E-2 spouse and dependants.

Contact us for advice with your E-2 investor visa application.

 

E2 Visa Dual Intent FAQs

 

What is dual intent in US immigration?

Dual intent is the concept that allows visa holders to legally have the intention of staying in the US temporarily while also planning to apply for permanent residency in the future.

 

Does dual intent apply to the E2 visa?

The E2 visa is generally considered a non-immigrant visa, which means it requires non-immigrant intent. However, dual intent is not officially recognized for E2 visa holders, so it is important to maintain a clear intention to return to your home country when applying or renewing an E2 visa.

 

Can I apply for a green card while holding an E2 visa?

Yes, E2 visa holders can apply for a green card, but they must be careful to maintain their non-immigrant intent throughout the process. Consulting with an immigration attorney is recommended to navigate this transition.

 

Will pursuing a green card affect my E2 visa status?

Pursuing a green card can complicate your E2 visa status since the E2 visa does not officially allow for dual intent. It is crucial to handle the process carefully to avoid issues with visa renewals or reentry into the US.

 

What are my options for obtaining a green card while on an E2 visa?

E2 visa holders may pursue a green card through family-based immigration, employment-based visas like the EB-5, or other eligible pathways. Each option has specific requirements and considerations.

 

How can I demonstrate non-immigrant intent when renewing my E2 visa?

To demonstrate non-immigrant intent, you should provide evidence of ties to your home country, such as property ownership, business interests, or family connections. This helps show that you plan to return after your temporary stay in the US.

 

What should I do if my dual intent is questioned during my visa renewal?

If your dual intent is questioned, it is important to provide clear evidence of your non-immigrant intent and seek legal advice. An immigration attorney can help you navigate the situation and provide the necessary documentation.

 

Can I travel outside the US while my green card application is pending?

If you plan to travel while your green card application is pending, you should obtain advance parole to ensure you can reenter the US without abandoning your application. Traveling without this document could jeopardize your green card process.

 

Is it risky to apply for a green card while on an E2 visa?

Applying for a green card while on an E2 visa can carry risks due to the non-immigrant intent requirement. It is important to carefully plan your strategy and seek professional legal advice to minimize potential complications.

 

What happens if my green card application is denied while I am on an E2 visa?

If your green card application is denied, you may continue to stay in the US under your E2 visa as long as it remains valid. However, it is important to address the reasons for denial before considering reapplying or seeking alternative immigration options.

 

Glossary

 

Term	Definition
E2 Visa	A non-immigrant visa that allows investors from treaty countries to enter and work in the US based on their investment in a US business.
Dual Intent	A concept in US immigration law that allows visa holders to simultaneously intend to remain in the US temporarily while also intending to seek permanent residency.
Non-Immigrant Intent	The requirement for certain visa holders, including E2 visa holders, to demonstrate that they intend to return to their home country after their temporary stay in the US.
Green Card	A document that grants permanent residency in the US, allowing the holder to live and work in the US indefinitely.
Adjustment of Status	The process by which an individual already in the US on a non-immigrant visa, such as an E2 visa, applies for a green card without leaving the country.
Consular Processing	The process of applying for a green card from outside the US, typically at a US embassy or consulate in the applicant’s home country.
EB-5 Visa	An immigrant visa category that allows investors to obtain a green card by making a significant investment in a US business that creates jobs.
Visa Renewal	The process of extending the validity of a non-immigrant visa, such as the E2 visa, allowing the holder to continue their stay in the US.
USCIS	United States Citizenship and Immigration Services, the government agency responsible for processing immigration petitions and visa applications, including the E2 visa.
Non-Immigrant Visa	A visa that allows foreign nationals to enter the US temporarily for specific purposes, such as business, tourism, or study, without the intent to immigrate.
Treaty Country	A country that has a commerce and navigation treaty with the US, allowing its citizens to apply for an E2 visa.
Intent to Depart	The expectation that non-immigrant visa holders will leave the US at the end of their authorized stay, unless they adjust their status or change visa categories.
Immigrant Visa	A visa that allows foreign nationals to enter the US with the intention of living there permanently, eventually leading to a green card.
Overstay	The act of remaining in the US beyond the authorized period of stay granted by a visa, which can have serious immigration consequences.
Port of Entry	The location where a traveler enters the US and is inspected by US Customs and Border Protection (CBP) officers, who determine the length of stay.
Legal Permanent Resident (LPR)	An individual who has been granted the right to live and work in the US permanently, typically through obtaining a green card.
Investment Requirement	The minimum amount of capital that an investor must invest in a US business to qualify for an E2 visa, which must be sufficient to ensure the successful operation of the business.
Intent to Return	The demonstrated intention of an E2 visa holder to return to their home country after their temporary stay in the US, a key factor in maintaining non-immigrant status.