E2 Visa Dual Intent: Apply for Green Card?
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 a dual intent visa?
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.
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.
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 from $500,000 and $1,000,000.
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.
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.
This article does not constitute direct legal advice and is for informational purposes only.