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Can I apply for an E-2 visa with a pending I-526?

I am currently on H-1B in the U.S. with a pending I-526. I am considering applying for Grenadian citizenship and then an E-2 visa. Will this work or will this be an issue because of my existing immigrant intent with EB-5?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you can apply for E-2.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes. You can apply for an E-2 nonimmigrant treaty investor visa as a Grenadian citizen. The fact that you have demonstrated immigrant intent, by filing an EB-5 immigrant visa petition on I-526 could be a negative factor in obtaining an E-2 Non-Immigrant Visa. You would have to show an intent to depart the U.S. upon the completion of your E-2.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    A pending I-526 petition demonstrates immigrant intent. E-2 does require a showing of a nonimmigrant intent and a return to your home country upon the termination of E-2 status/closure of E-2 business. Thus you may have issues to obtain E-2 visa. It is not clear why you wish to switch from H-1B to E-2 with a pending I-526 petition at this point. Consult an experienced immigration attorney for more comprehensive guidance.

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    Stephen Berman

    Immigration Attorney
    Answered on

    No, an immigrant visa is inconsistent with an E-2.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It should work but must convince them of intent to return if I-526 and immigrant visa aren't granted.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Consulates do not recognize E-2 dual intent, but USCIS is more willing to. An E-2 application would need to really show strong ties to the foreign country. Perhaps using the EB-5 delays in I-526 processing and visa availability can work in your favor?

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    BoBi Ahn

    Immigration Attorney
    Answered on

    It may, because E-2 specifically requires a statement of non-immigrant intent. In most cases, investors usually process for an E-2 status before processing for EB-5 (in order to avoid this conflict).

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Yes. You actually can. Ideally, it would have been better if you had first filed for the non-immigrant E-2 visa, obtain it and then filed for the EB-5 immigrant visa. That said, if you work with an experienced immigration attorney you should be able to proceed with an E-2 application even now that you already filed your I-526 as part of your EB-5 application, as long as you clearly attest in your application your intent to leave the United States upon conclusion of your E-2 status. The regulations, as stated in 8 CFR 214.2(e)(5), spell out the rule very clearly as follows: non-immigrant intent. An alien classified under section 101(a)(15)(E) of the Act shall maintain an intention to depart the United States upon the expiration or termination of E-1 or E-2 status. However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. Furthermore, according to Foreign Affairs Manual of U.S. Department of State, 9 FAM 402.9-4(C) as long as the alien expresses an unequivocal intent to depart the United States upon the termination of E status, that is normally sufficient to apply for the E visa.

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    Robin J Gray

    Immigration Attorney
    Answered on

    It would have been better for you to have filed for Grenadian citizenship and then the E-2 visa prior to applying for the EB-5 visa. It may be an issue because of the intent demonstrated by applying for the EB-5 visa. You would have to provide sufficient documentation to show that you have strong ties to your home country, which will also be difficult since you are already in the U.S. You may want to have a private consultation with an immigration attorney for further discussion.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    You can apply for E-2 if your country is a treaty country.

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