The State of E-2 Visas: How to Apply Despite COVID Bans and Suspensions

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: how can I apply for an E-2 investor visa despite the ongoing Coronavirus pandemic and suspension of routine visa services at Consulates and Embassies worldwide.

Want to know more? Keep on watching for more information.

Overview

More and more our office is receiving inquiries from prospective E-2 visa applicants who are stuck in the application process due to the ongoing Coronavirus pandemic.

First, what are the requirements for an E-2 visa?

The E-2 visa is a treaty trader investor visa that allows foreign investors from select countries to invest in an existing or new business enterprise in the United States.

Requirements:

  • The investor, either a person, partnership or corporate entity, must be a citizen of a treaty trade/investment country
  • You must have invested or be in the process of investing in the business and show the path of funds for the investment from your home country to the US account
  • The investment must come from the investor and the money must be “at risk,” meaning that the investor must take action to invest the money into equipment, renting the business premises, and other such investment activities
  • You must actually start the business and hire workers before applying for the E-2 visa
  • You must be in a position to direct the business with your experience and/or skills and be involved in the management or operation of the business. You cannot be a passive investor
  • There is no set investment amount required however the investment must be sufficient to start the particular business (this amount will vary depending on the type of business enterprise)
  • The business cannot be marginal –the business should not be established solely for the purpose of earning a living for the applicant and his or her family.

What is the current situation for E-2 visa applicants?

As you know, back in March of 2020, the Department of State suspended routine visa services worldwide due to the COVID-19 pandemic.  A few months later the agency announced that U.S. Embassies and Consulates would begin a phased resumption of routine visa services.

Unfortunately, the DOS has been unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre-pandemic workload levels. The reality is that most posts have had very limited visa appointments and have only responded to emergency requests.

To make matters worse the President issued a series of Coronavirus proclamations that halt visa issuance and entry for individuals who have been physically present in the following countries within the 14 day period preceding their attempted entry to the United States: the Schengen countries, Ireland, United Kingdom, Brazil, China, and Iran.

The National Interest Exception

Despite the consular closures worldwide and obstacles imposed by these proclamations, E-2 visa investors may still receive visa appointments if their entry is in the “national interest.”

For those who qualify, the national interest exception allows E-2 visa applicants to bypass the suspension of routine visa services as well as the various visa bans imposed by the presidential proclamations.

DOS officers may grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Granting national interest exceptions for travel to the United States is available for those who will bolster the economic recovery of the United States.

Future E-2 Visa Legislation Could Create Path to Residency

With the incoming Biden administration, it is possible that the E-2 Visa Improvement Act of 2019 could be be renewed. This piece of legislation previously amended the INA to permit a nonimmigrant E-2 alien (treaty investor) who has been in the United States in such status for at least 10 years and has created full-time employment for at least 2 individuals to apply for immediate employment-based immigrant status. A renewal of this legislation would allow up to 10,000 such visas to be made available each fiscal year.

Secondarily, this legislation would allow sons and daughters of E-2 aliens (or aliens seeking such status) to remain on their parent’s visa as a child until age 26 and receive employment authorization at age 18.

Questions? If you have immigration questions and would like to schedule a consultation, please call 619-819-9204 or text 619-483-4549.

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