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What is the impact on my E-2 visa renewal if my I-526 is not approved?

I have an E-2 business and I am planning to apply for an EB-5 visa using this business. My current E-2 visa is valid for another three years. If my I-526 petition is not approved, or if it is still pending when my E-2 visa is due for renewal, will I be able to renew the E-2 visa?

Answers

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    If the I-526 petition is pending, then it may be very problematic to renew your E-2 visa at a U.S. consular post abroad. A foreign national in E-2 status cannot have immigrant intent. A consular officer will not likely renew your E-2 visa because you have filed an I-526 petition, which shows your intention to immigrate to the United States.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    As long as you can demonstrate your current non-immigrant intent for the present filing of the E-2, but disclose your long-term intent for immigrant visa processing, you should be able to have your E-2 adjudicated.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Most likely yes, especially if you do it as an extension in the U.S.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    That is tricky. USCIS seems to allow extensions after immigrant petitions, but the consulate may not. So while you may be able to get extensions to stay in the U.S., the consulate will not give you a visa to allow international travel. Beyond that, an I-526 by itself may still be OK because you did not file for the immigrant visa itself. As you can see, retaining an immigration attorney is essential to your planning.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Because the E-2 visa is a non-immigrant intent visa, having an immigrant petition will potentially cause problems with your E-2 extension. I would suggest that you put the consulate processing option in the I-526 forms to signal that you intend, at the time of filing, to go out to be interviewed for the immigrant visa application when I-526 is approved. I must note, however, that it is highly likely that your I-526 will be approved before you need to file the extension application if your visa is good for three years because the normal processing time for I-526 is 20 to 24 months.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You need to consider the issue of immigrant intent.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you should be able to renew the E-2 visa. The two visas are mutually exclusive.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You should be able to renew your E-2 visa, but the issue might be your immigrant intent. An E-2 visa is a non-immigrant visa and it is not considered a true dual-intent visa, like an H-1B or an L-1. You should consult with an experienced immigration attorney who can advise you when it comes time to renew.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If handled skillfully, it should be possible to explain. The law requires you to prove your intent is to depart the United States at the end of your authorized stay. Make sure you do not designate adjustment of status on your I-526 petition, as this could be problematic. 9 FAM 402.9-4(C) Intent to Depart Upon Termination of Status (CT:VISA-569; 04-06-2018) An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time, nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the United States. The alien's expression of an unequivocal intent to depart the United States upon termination of E status is normally sufficient. An applicant who is the beneficiary of an immigrant visa petition will need to satisfy you that his/her intent is to depart the United States at the end of his/her authorized stay, and not stay in the United States to adjust status or otherwise remain in the United States.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    The E visa has an immigrant intent bar. That means that it can be denied if you intend to immigrate to the U.S. Filing an I-526 petition is prima facie evidence that you intend to immigrate. I would indicate in the I-526 petition that you intend to consular process, just to protect yourself.

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    Charles Foster

    Immigration Attorney
    Answered on

    If your EB-5 investor petition on Form I-526 is not approved, it should have no impact whatsoever with respect to your pending E-2 visa for renewal. There are separate requirements for same. However, each E-2 applicant must demonstrate that he has an intent to depart the United States at the end of his status and it is conceivable that an American consular officer could raise that as an issue, given the fact that you have sought to become a permanent resident through the EB-5 program.

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