What factors should inform the decision to apply for E-2 status at a U.S. consulate abroad versus filing a change-of-status petition within the United States?

If you qualify for the E-2 Treaty Investor visa, you have two options for requesting E-2 classification:

• Change of status inside the United States through U.S. Citizenship and Immigration Services (USCIS)
• Consular processing at a U.S. embassy or consulate abroad

The E-2 eligibility requirements do not change based on how you file. Whether you request E-2 classification through a change of status in the United States or through consular processing abroad, the same legal standards apply. You must meet the treaty nationality requirement, make a qualifying investment, and show that the business is real, operating, and more than marginal under U.S. immigration regulations. What changes is where the request is processed and whether you receive status only or both a visa and status at approval.

Factor 1: Physical location at the time of filing

This factor determines where E-2 classification may be requested.

Change of status (inside the United States)

• You may request E-2 classification through a change of status only if you are physically present in the United States in a lawful non-immigrant status.
• USCIS reviews and decides change of status requests.

Consular processing (outside the United States)

• If you are outside the United States, you request E-2 classification through a U.S. embassy or consulate.
• USCIS does not process change of status requests for applicants abroad.

Factor 2: International travel after approval

This factor affects your ability to leave and return to the United States.

Change of status (inside the United States)

• USCIS approval gives you E-2 status only.
• E-2 status allows you to remain and work in the United States.
• If you leave the United States, you must obtain an E-2 visa before returning.
• A change of status approval alone does not permit reentry.

Consular processing (outside the United States)

• A U.S. embassy or consulate issues the E-2 visa.
• The visa allows you to request entry to the United States during its validity period.
• You receive E-2 status when you enter the United States using the visa.

Factor 3: When you may begin E-2 business activity

This factor affects when you may start working for the E-2 enterprise.

Change of status (inside the United States)

• You may begin E-2 business activity once USCIS approves the change of status.
• You do not need to travel before starting work.

Consular processing (outside the United States)

• You may begin E-2 business activity only after the visa is issued, and after you enter the United States in E-2 status.

Factor 4: Processing control and timing

This factor affects predictability and planning.

Change of status (inside the United States)

• USCIS allows premium processing for Form I-129, Petition for a Non-immigrant Worker.
• Premium processing may shorten adjudication time.
• You may remain in the United States while USCIS processes the request.

Consular processing (outside the United States)

• The U.S. Department of State does not offer premium processing for visa applications.
• Interview scheduling depends on the specific embassy or consulate.

Summary

• Physical location determines where you may file the request.
• International travel plans determine whether a visa is required for reentry.
• Work start timing determines when you may begin E-2 business activity.
• Processing control and timing affect predictability and planning.

Sources:

1. USCIS. https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors
2. USCIS. https://www.uscis.gov/visit-the-united-states/change-my-nonimmigrant-status
3. USCIS. https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing
4. U.S. Department of State. https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visa-e.html