How Foreign Investors Manage U.S. Businesses While Awaiting E-2 Visas

Foreign investors are facing inordinate waiting periods to get work visas to manage their newly acquired or established businesses in the United States. A typical example is a foreign investor purchasing a hotel and wanting to direct and develop the business with an E-2 work visa. While in some instances the wait time may be shorter, by and large, the waiting time to get an E-2 work visa can be some 8 to 12 months and in some instances much longer if at all.

The U.S. Business Visitor Option

Foreign investors from visa waiver countries such as Canada or countries in the European Union (EU), can enter the U.S. as visitors to attend to their businesses. In the case of Canadians, their period of authorized stay is usually six months. In the case of visa waiver visitors, their maximum period of authorized stay is only 90 days. Foreign investors from countries that do not have visa-waiver access to the USA, such as many African and Asian countries, have to apply for B-1/B-2 visas to attend to businesses as visitors. According to a State Department note, “As of November 2022, the median worldwide wait time for a tourist visa (B1/B2) interview appointment is about two months, and applicants with urgent travel needs who meet certain criteria can apply for an emergency appointment, usually available within days.” Family members can come as visitors for pleasure to be with the investors for the time being.

Visa Waiver Visitors

In the case of visa waiver visitors, on the expiry of their visa after 90 days they must almost always return to their country of origin. They can try to return again following a visit home. However, for such visitors, and for Canadian visitors as well, there is an unwritten U.S. border custom that is applied limiting their re-entries to a combined period of authorized stay of six months in a rolling year. The basis for the limit is the concern about people working unlawfully in the U.S. or, indeed, persons living full-time in the U.S. and only saying they are visitors to gain entry into the country. Canadians can overcome this problem by applying to extend their visitor status once in the USA as discussed below. Europeans and other visitors from visa waiver countries, such as Japanese or South Koreans, unfortunately, cannot apply to extend or change their visitor stay inside the USA. A workaround for such individuals could be to apply for B-1/B-2 visas at their local U.S. consulates instead of traveling to the U.S. on their visa waiver status. This would then put them in the same shoes as other foreign investors visiting the USA in terms of staying for up to six months instead of just 90 days and then possibly extending or changing their visitor’s status in the U.S.

Extending Period Of Authorized Stay

As mentioned earlier, a visitor inside the U.S. can apply to extend their period of authorized stay. Current processing times for such applications are at least 12 months due to backlogs. In short, this method would likely buy the investor six months to start with the initial entry and at least 12 months of processing time for the extension or 18 months of total period of authorized stay in the USA. If such an investor files an E-2 visa application with the U.S. consulate abroad when the business is started, hopefully, the combination of visitor and extension applications would give the investor enough time to stay in the USA until they got their E-2 visa.

No Hands-On Work

Extending a business visitor’s status does not entitle the visitor to do hands-on work such as answering phone calls, registering guests at the front desk, cleaning rooms, or the like. No salary can be taken. However, a business visitor is entitled to be present on-site at all times, talk to people, attend meetings including meetings of company directors, and participate in decisions related to the business. It is a fine line the investor would need to walk, but it is quite doable and if the investor is reasonable, nobody should give them a hard time about what they are doing.

The E-2 Status Route – A Different Approach

Under the E-2 status approach, instead of extending a visitor visa, a foreign investor can ask the U.S. Citizenship and Immigration Service (USCIS) to approve an internal application inside the U.S. to change their status from business visitor to E-2 status. By paying a premium processing fee of $ 2500 U.S. the investor can get a decision within 15 days. Note that status is different than an E-2 work visa. Think of the E-2 work visa as a key to getting into the U.S. and the ability to travel outside the USA and return freely. Think of E-2 status as essentially an internal work permit that enables the investor to stay and work, but does not give the investor a key to enter the U.S. Approvals of E-2 status applications are usually granted for two years.

What About Misrepresentation?

The main objection the U.S. Citizenship and Immigration Services could raise on an E-2 status application is that the officer at the border was not told of the investor’s intent to change status after entering. They could argue that really this is an unfair attempt at an “end-run” around the immigration rules that require applicants normally to apply outside the U.S. for an E-2 visa. The key to success would be to indicate what makes it necessary for the change of status. If the investor can show, for example, that he or she only got the business idea after entering the USA, that should be enough to merit approval. Providing a rationale that indicates that not everything was premeditated before entry is the key.

An E-2 Visa Is Ultimately What Is Needed

Whether an investor chooses to be an extended visitor or to get E-2 status, these are interim measures. An E-2 work visa gives the applicant all the rights of someone with status except they can ALSO travel in and out of the country. Ultimately that is what the investor will need to run their business over the course of the next five years. At the moment, except perhaps in a few consulates that are able to fast-track matters, getting an E-2 visa from a consulate abroad can take considerable time. For example, in Toronto, it takes some eight to 12 months. When the interview comes, the investor in the USA will have to abandon their status to return home to attend the U.S. consulate interview. Then the investor can return to the USA with an E-2 visa. Ultimately, that is the whole point of the exercise.

Hopefully, processing times at U.S. consulates abroad will improve over time and innovative solutions like these will become unnecessary. Until then, however, making use of these options will help investors access and take care of their U.S. investments.