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What happens if my E-2 visa and I-94 expire while my I-485 is still pending?

I live with my family in the U.S. on an E-2 visa that will expire in about two years. We are Canadian citizens. Three months ago, I made an EB-5 investment and filed I-526. Assuming my I-526 will be approved, I will have to file for an adjustment of status petition. If the AOS is filed before the expiration of my E-2 visa and I-94, can I keep working in my E-2 business when my E-2 visa expires and the AOS is pending? If my E-2 visa expires before an AOS is filed, given that I already filed an immigration petition, will I still be able to renew my E-2 visa?

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    At the time you file I-485 upon approval of I-526, you should also file I-765 for work authorization and I-131 for travel document. You will generally get approved for the combo card within 90 days of receipt of I-485 packet by USCIS. You can work for an E-2 business with this card. While I-485 is pending, you are considered in authorized period of stay until a decision is made on I-485. It may be difficult to extend E-2 with an approved I-526 immigrant petition. You may want to look into consular processing for an immigrant visa if/when I-526 is approved. Consult your immigration lawyer for planning.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    When you file your adjustment of status application, you can also apply for employment authorization. After you receive the new employment authorization card, you can continue to work at your new U.S. business even if your E-2 status expires. It will be difficult and very problematic for you to obtain a new E-2 visa at a U.S. consular post abroad.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I recommend extending E-2 until CR is actually in hand.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    AOS pending is a legal status. With AOS filing, you will also file travel and work authorization applications. If they are approved (normally within 90 days of filing), then you are authorized to work and travel for a year at a time until I-485 is adjudicated. The work authorization will allow you to continue operate and earn income from your E-2 business. If the I-526 is approved, E-2 renewal may be difficult, as it is a non-immigrant intent category of visa, unless you are willing to go and do the consulate processing for immigrant visa after I-526 is approved.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    This can be worked out, assuming your I-526 is approved before the expiration of your I-94. I recommend you immediately consult with your investment immigration attorney on this question.

  • Avatar

    Dale Schwartz

    Immigration Attorney
    Answered on

    When you file an I-485 after your EB-5 case is approved, you will also apply for employment authorization. It will take 90 to 120 days to get it approved. If your E-2 visa was still current with that 90- to 120-day waiting period, you can continue to use it to work (until your work permission card is issued). You might be able to renew your E-2 status while your EB-5 and/or I-485 cases are pending.

  • Avatar

    Belma Chinchoy

    Immigration Attorney
    Answered on

    As long as you file for AOS while the I-94 is valid, you'll be fine. Under the current laws, upon proper filing of AOS, your status changes to "adjustment pending" and you no longer have to maintain valid non-immigrant status. There are several considerations to keep in mind with this approach, so make sure to discuss with your attorney.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If your AOS petition includes a request for work authorization, then you can work once that is approved, but as long as the AOS is filed before the E-2 expires you can at least remain in the U.S. while that is pending. Once the AOS is filed, however, it may be extremely difficult to obtain a new E-2 visa (which requires non-immigrant intent).

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    If one files an application for adjustment of status while in status and before the expiration of their E-2 or other non-immigrant visa status, as evidenced by the date on their departure record on Form I-94, they can maintain their status in the U.S. and upon receipt of their employment authorization document (EAD), keep working in the U.S. They can continue to work in E-2 status up until the date same expires and subsequently on their EAD.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    If you have filed and have a pending I-485, then you are authorized to remain in the U.S. based on the pending I-485 adjustment of status to lawful permanent resident status. You should also file for an employment authorization document and advance parole when you file the I-485 so that you can continue to work and travel while I-485 is pending. After filing the I-485, you are no longer subject to or dependent on the E-2 expiration. If, however, your E-2 visa status expires before the AOS is filed, then you will be out of status, so you should plan to file for the E-2 extension before that occurs.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    As you file your I-485 for eventual adjustment of status (AOS), you should file the I-765 EAD application as well to give yourself additional options besides your current E-2 visa. This can be used to continue to work while your I-485 is pending even if your E-2 expires during the pendency. In addition, if you want to renew your E-2, feel free to do so. There is nothing that will prevent from doing so if you want it.

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