Financial Workhorse Of U.S. Immigration For Foreign Investors

There is little doubt that the American E-2 investor work visa has been the workhorse of foreign investment in the United States over the years. Before the pandemic hit, it was possible to get approval for an E-2 work visa application from one of the countries with an investment treaty with the United States in a matter of a few months. For example in 2019 U.S. Consulates issued over 43,000 E-2 work visas, but in 2020 that number declined to 23,000. However, since Trump’s presidency and the pandemic, processing times have lengthened. More often than not these days, E-2 visa processing is taking over a year. Attorneys have had to be very creative in serving their clients who were investing in the United States to enable them to pursue their business goals.

Delays in Processing E-2 Visas and Backlog Build Ups

At a recent American Immigration Lawyers Association (AILA) convention in New York, officials from the Department of State briefing the conference about consular processing of visas indicated that during the Trump presidency the Department lost somewhere between 400 and 500 senior consular officers and that there was really no plan to replace them. Furthermore, with foreign consular offices having poor ventilation, when Covid-19 hit, the Department was plagued by shutdowns and officers who became ill which in turn slowed down processing and built up a backlog of E-2 cases waiting for approvals. While Secretary Anthony Blinken has hired some 500 new officers, it will take time for them to familiarize themselves with the process and officials at the conference predicted it will take years for the U.S. consular system to get back to where it was before President Trump and the pandemic came along. Even in the best consulates, the processing times for E-2 visa applications are still six to eight months while in the worst U.S. consulates they are not even processing such cases.

What Needs To Change In The E-2 World

Critics of the American E-2 processing backlog argue what is needed is to take decision-making about E-2 work visa applications out of the hands of foreign-based U.S. consular officers and to place it in the hands of a domestic processing group of several dozen well-trained and knowledgeable officers. Thereafter, consular interviews and approvals of E-2 cases should be handled in a way similar to how revalidation of work visas was handled at consulates previously, that is to say, the interview process was more of a last-minute check and formality and not so much a substantive review of the applicant and the submission. Tammy Fox-Isicoff is a senior U.S. immigration attorney and leader in the AILA organization and she argues in favor of such an approach. Many other immigration attorneys agree.

Another potential improvement for the E-2 work visa program would be to create a path to permanent residence with it. For example, once a foreign investor has held an E-2 work visa for five years in the United States and has settled himself there, and once the investor has renewed the E-2 visa for a further five years, the investor could be allowed to apply to adjust his status inside the United States to permanent residence. There is good reason to open this prospect to E-2 visa investors since by the five-year mark such investors will have established themselves in the USA, set down roots for themselves and their families, and likely created jobs for American workers. While it is true that the EB-5 investor immigrant program can be an option for such candidates, that program requires a minimum investment of $ 800,000 and the creation of at least 10 new jobs – requirements that are onerous for many E-2 business owners. Furthermore, the EB-5 program is currently substantially delayed in terms of processing times and riddled with uncertainty in view of regulatory issues and court challenges which are not conducive to what is needed by E-2 visa holders. Many E-2 visa holders and supporters believe there is room in this world for both these programs to work side by side.

However, such possible changes would require congressional approval, something difficult to get in these contentious times. Republicans are not ready to open new categories of visas for immigrants nor to changes in general and for this reason such changes are not likely to be made soon.

What Are The Available Options At This Time?

So that leaves E-2 foreign investors with the options that are currently available to them to pursue their American investment goals. Those options include waiting inordinate times for the approvals of their applications at backlogged U.S. consulates, or where possible, travelling to the U.S. as B-1 visitors to establish or take over an operating business and then applying for the E-2 visa while availing themselves of the use of B-1 visitor visa status to look after their investments until their E-2 visas are approved. When possible, such as in the case of investors from Canada or from a treaty country that is not under the U.S. visa waiver program, investors can apply inside the USA to change their status from B-1 visitors to E-2 status. In countries with visa waiver status, and where the Electronic System for Travel Authorization (ESTA) step is required to travel to the USA, such as EU or some Commonwealth countries, investors are not able to adjust status because of restrictive terms imposed on their entry requiring a departure within 90 days of arrival.

Creative Solutions

Investors from such visa waiver countries could, however, ignore these visa waiver advantages, and instead, on purpose apply for B-1 visitor visas through U.S. consulates overseas to come to the USA and then seek to change status inside the USA. This, however, assumes Consulates overseas are processing such B-1 visitor visas reasonably quickly which unfortunately is not often the case. Also, in those instances, investors would need to take care so as not to raise the presumption of preconceived intent associated with entering the USA as a visitor but later attempting to change status to a work permit. Such a gambit would work better if the internal E-2 status application was delayed at least 90 days following entry so as to diminish the likelihood that examining officers would look for fraud in entry to the USA on the reasoning that the applicant said he was a visitor when entering but really planned to stay as a worker. Dealing with this challenge can be a matter of strategy and timing and merits a consultation with a U.S. immigration attorney.

For those foreign investors who are lucky enough to be in jurisdictions where E-2 visas are being processed reasonably quickly, such as Toronto in Canada for example, E-2 visas application still remain reasonably available given the new situation worldwide. For others, creative lawyering will be necessary to do what is possible to help investors overcome the hurdles of current processing realities.