The E-2 treaty investor classification is granted for a limited period of stay. Each time an E-2 investor enters the United States, that stay is tied to a specific end date. That date controls the period of authorized stay under U.S. immigration law.
E-2 status allows a national of a qualifying treaty country to enter the United States to develop and direct a qualifying investment enterprise. The length of the authorized stay is recorded on Form I-94, Arrival and Departure Record, issued by U.S. Customs and Border Protection (CBP). If an investor remains in the United States past that date, or otherwise fails to maintain the non-immigrant status under which the person was admitted, the person is no longer maintaining E-2 status under U.S. immigration law.
When E-2 status is no longer maintained, U.S. immigration law sets out specific consequences tied to unlawful presence, future admissibility, and eligibility for immigration benefits.
When unlawful presence begins for E-2 holders
U.S. Citizenship and Immigration Services (USCIS) defines unlawful presence as time spent in the United States after the period of authorized stay expires, unless an exception under the law applies. For E-2 holders, the period of authorized stay is shown on Form I-94, Arrival and Departure Record.
If an E-2 investor remains in the United States beyond the I-94 expiration date without an approved extension of stay, USCIS may treat that time as unlawful presence.
For illustration, an E-2 investor may be admitted with an I-94 valid until June 30. If the investor remains in the United States on July 1 without having filed a request with USCIS before the I-94 expiration date, the period after June 30 may be evaluated by USCIS under its unlawful presence rules.
USCIS distinguishes unlawful presence from being out of status, but remaining beyond the authorized stay is a key factor in how unlawful presence is assessed.
How an unintentional overstay may be addressed under U.S. law
U.S. immigration law permits certain non-immigrants to request an extension of stay or a change of non-immigrant classification by filing with U.S. Citizenship and Immigration Services (USCIS) before the expiration of the authorized stay shown on Form I-94, Arrival and Departure Record.
If an E-2 holder files a timely request to extend stay or change non-immigrant classification before the I-94 expiration date, USCIS evaluates these requests based on statutory and regulatory requirements, including whether the filing was made before the period of authorized stay ended.
If unlawful presence has already accrued and the individual departs the United States, U.S. law provides a limited mechanism to request forgiveness of certain inadmissibility grounds through a waiver of inadmissibility, if statutory eligibility requirements are met. USCIS evaluates waiver requests based on criteria set by Congress.
These mechanisms are governed by statute and USCIS policy and apply only in specific circumstances defined by law.
Immigration consequences of overstaying or violating E-2 status
First, the individual is no longer in lawful non-immigrant status. USCIS considers a person to be out of status when the period of authorized stay has expired or when the conditions of admission are no longer met.
Second, remaining in the United States beyond the authorized period of stay may result in the accrual of unlawful presence.
If unlawful presence accrues and the individual later departs the United States, U.S. law provides for periods of inadmissibility. Accruing more than 180 days but less than one year of unlawful presence may result in a three-year bar to admission after departure. Accruing one year or more of unlawful presence may result in a ten-year bar to admission after departure. These consequences are applied under the Immigration and Nationality Act and may be assessed when a person seeks admission or a visa after departing the United States.
Overstaying or failing to maintain non-immigrant status may also affect eligibility for future immigration benefits. USCIS policy explains that failure to maintain lawful status can limit or prevent access to certain immigration filings, depending on the benefit sought and the applicable statutory requirements.
These consequences are established by statute and USCIS policy and are evaluated based on the facts of each case.
Key takeaways
- E-2 status is temporary and limited to the period of authorized stay granted at admission.
- The authorized stay is controlled by Form I-94, Arrival and Departure Record, not by the visa expiration date.
- Overstaying may result in unlawful presence, which can affect future admissibility and eligibility for immigration benefits.
- U.S. immigration law provides limited mechanisms to address an unintentional overstay, including requests to extend or change status filed before expiration and statutory waivers in specific circumstances.
Sources:
- USCIS. https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-inadmissibility
- USCIS. https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4
- USCIS. https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3
- USCIS. https://www.uscis.gov/policy-manual/volume-8-part-o-chapter-6
- USCIS. https://www.uscis.gov/policy-manual
- U.S. Customs and Border Protection (CBP). https://i94.cbp.dhs.gov
- CBP. https://www.cbp.gov/travel/international-visitors/i-94