Common Issues for Third-Country Treaty Investor (E-2) Visa Cases

Traditionally, the E-2 visa is only available for foreign nationals who possess the nationality of a country with which the U.S. maintains a bilateral investment treaty or a treaty of friendship, commerce and navigation. It is a nonimmigrant visa with major benefits that are typically not conferred by other types of nonimmigrant visa, including fast processing time, indefinite extension, ability for the entire family to travel freely, possibility to avoid taxation on worldwide income, ability for the derivative children to go to school, and ability for the spouse to work.

In recent years, delays in various immigration preference categories have brought this visa under the spotlight. Through certain “citizenship by investment” (CBI) programs, citizens of nontreaty countries, such as China, India, and Vietnam, can obtain citizenship of an E-2 treaty country (most notably Grenada and Turkey) and apply for the E-2 visa.

While we have successfully assisted many of our clients from non-treaty countries in obtaining the E-2 visa, we have also seen a fair amount of confusion about the process commonly shared among our clients. Addressing those issues at the onset of the representation has proven to be essential in building rapport with the client and moving the case along smoothly.

 1.  A new passport does not create a new identity

The confusion stems from the fact that many non-treaty country clients are not accustomed to the practice of holding passports from multiple countries. A common misconception is that a new passport from another country comes with a new identity, and that all immigration history under the initial identity is severed from this new identity. This could not be further from the truth. A new passport does not create a doppelgänger. It simply means the same individual now has dual nationality. A nonimmigrant visa applicant should truthfully report information of all passports held by him on the Nonimmigrant Visa Application. Any visa denial or pending/approved immigrant petition must also be disclosed, even if it was tied to the original nationality. Failure to properly disclose such information could potentially result in permanent bar to enter the U.S. for fraud or misrepresentation under INA 212(a)(6)(C)(i).

The only caveat is that in the E visa context, the Board of Immigration Appeals has held in Matter of Ognibene, 18 I&N Dec. 425 (BIA 1983) that the treaty country nationality does become the sole and operative nationality during the duration of the admission. This principle is further enshrined in 9 FAM 402.9-4(B), which states that in the case of dual national owner(s), a choice must be made by the owner(s) as to which nationality shall be used. However, this issue will only arise with regard to a change of status application to the E status when the applicant initially entered the U.S. in a different status with a passport from a non-treaty country. Barring special circumstances like this, E-2 applicants should treat the new passport only as a new form of identification during the E-2 process.

2. You can have valid visas of different types in different passports

Many clients are also concerned that getting the E-2 visa will jeopardize other valid visas they already have. They also think that having different visas in different passports could further complicate the situation. Since many of them already possess a valid B1/B2 visitor visa, they worry that their B1/B2 visa would get canceled if they apply for E-2 with a new passport. Under 9 FAM 403.9-2(C), while it is true that a visa applicant is not permitted to possess more than one valid visa of the same classification, it is acceptable for someone to have the desire to travel to the U.S. on different occasions for different primary purposes. Therefore, you can have valid visas of different types in different passports. At the border, you will need to declare your primary purpose of the visit and present the appropriate visa in the appropriate passport.

3. You can apply from inside the U.S., but it is not recommended

As mentioned above, one of the benefits of the E-2 visa is that it can be applied for directly at a U.S. consulate or embassy overseas without going through the hassles of dealing with U.S. Citizenship and Immigration Services (USCIS). Any practicing immigration attorney would probably agree that in the current immigration environment, the ability to circumvent USCIS to apply for an immigration benefit is a major advantage. However, this does not mean that you cannot apply for E-2 from inside the U.S. If you are in the U.S. in a valid nonimmigrant status, you may file Form I-129 to change your status to E-2.

However, such practice is almost always not recommended, unless there are special reasons that prevent you from traveling outside of the country. There are numerous reasons for that. First, filing Form I-129 costs $460 and the adjudication takes approximately 2-4 months. You can additionally pay a hefty fee of $1,410 for premium processing. On the other hand, applying for the E-2 visa at the consulate only costs $205, and the case typically gets processed within two months. Furthermore, an I-129 approval only grants a one-time stay of up to two years in E-2 status. As will be fully discussed below, if the client ever travels outside of the U.S., he will have to go through essentially the same application process again by applying for an E-2 visa stamp at a U.S. consulate or embassy. Given the above, applying from inside the U.S. certainly looks like a loser in most cases.

4. E-2 visa stamp and E-2 status are different (albeit related)

Although they are usually used interchangeably in the colloquial sense, visa and status are technically two different things. A visa is a stamp or sticker placed in the passport that is used only when one is seeking entry into the U.S., while immigration status is the legal permission to remain in the U.S. under the specific conditions of a visa classification.

Each time you wish to use your E-2 visa to enter the U.S., you need to present your unexpired E-2 visa in your passport. After you enter with an unexpired E-2 visa stamp, you will be given 2 years of authorized stay under the E-2 status, which means you can remain in the U.S. for a maximum of 2 years without leaving, regardless of your E-2 visa expiration date. At the end of the period, you must either apply for an extension (by filing Form I-129) or depart and reenter the U.S. using a valid E-2 visa.

Therefore, it is perfectly acceptable that your E-2 visa stamp expires during this 2-year period. In this case, you are still allowed to remain in the country under the E-2 status for the duration of your authorized stay, but you will need to renew your E-2 visa at the U.S. embassy for your next entry once you travel overseas.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the July 18, 2019 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. 
Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.