E-2 Investor Visas in 2021

By Sarah Brunet, sarah@brunet-immigration.com

I practice business immigration with an emphasis on E-2 investor visas. As an immigrant from France, I have found that many of my fellow French compatriots love the prospect of applying for an E-2. In fact, an E-2 investor visa is often the go-to visa for many business immigration practitioners as it only requires a small amount of investment, no education requirements, and allows for spousal work permits. These are just a few of the benefits of an E-2. In 2021, the E-2 will continue to be my go-to visa. While no one can predict the future, E-2s have been surprisingly favored by consulates in terms of issuance priority. Indeed, when applying for an E-2 appointment in Paris, France, clients were consistently scheduled in a matter of weeks during the Fall of 2020 while the Covid-19 Consular slowdown was happening. However, O-1 appointments were almost impossible to secure. The data doesn’t lie, and it’s easy to see that E’s were likely prioritized over most other NIVs.

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In addition, it appears that most top E-Visa issuing posts have, for the most part, resumed their pace of case processing. The exceptions lie with Ciudad Juarez, Mexico and London, England that have yet to catch up on their backlog of cases. It is also important to note that consular posts seem to approve National Interest Exceptions (NIE) much more generously for the E-2 investor visa than they would have others. Indeed, most clients applying for an E-2 investor visa have not reported any specific question pertaining to NIE during their visa interview, while being granted NIE with no additional evidence other than the promise of hiring U.S. workers. Although these reports and data are encouraging, it would be foolish to not take into consideration the current political climate. I advise practitioners to:

1. Evaluate the Option of Filing For A Change of Status (COS or C/S)

If my client has already secured a B-1 or B-1/B-2 and is in the United States, it may be better to file for a Change Of Status to E-2 if their intent to remain changed after admission. While I have heard of USCIS finding major issues with E-2 C/S filing, my experience has thus far been very positive. I find that, while USCIS requires advanced documentation regarding the source of funds, it is, overall, fair in its adjudication, and certainly trusts young entrepreneurs more than the consulate.

Total E-2 Visa Issued

That said, I have a word of warning. I do not recommend applying for a B-1 or B-1/B-2 in order to later apply for a C/S. In my practice, I have found that securing a B visa is often unreliable, and B visa appointments are much harder to secure than E visa appointments, not to mention the potential risk of misrepresenting a client’s case if one were to apply for a B instead of an E. Also, if possible, try to have the client enter on the B-1, as opposed to the B-2.

2. Protect the Investment

Given the current situation, I suggest that, whenever possible, counsel should advise clients to protect their investment in case of an E-2 denial. While it is not always possible to condition an investment according to a Visa or Change Of Status approval, I believe, more than ever, we should push clients to be creative and advocate for conditional investments. For instance, the sale of a business can be conditioned to visa issuance, the purchase of inventory or furniture, a lease, … While your client may not always be able to negotiate a suspensive condition in a contract, it is definitely recommended.

E-Visa Issuance per Consular Post October 2019 - October 2020

Top 5 E-2 Investor Visas Issued by Country Fiscal Year 2020

3. Adapt the business plan to pandemic

It is important to have a pandemicproof business plan, and for this, your client may have to adapt their way of doing business and include an expansive view of their business operations for additional flexibility. For instance, restaurants should offer take out/delivery, tutoring businesses offering online classes, brick and mortar stores creating an additional online storefront… Those are just a few ideas, and there is no right or wrong. However, it is essential to recognize that although current

conditions may currently be far from ideal for starting certain businesses (restaurants, schools, gyms…), businesses may thrive by being flexible and offering much-in-demand services. The business sense and vision of the client should govern the business direction, but the practitioner should keep an eye out for Covidfriendly business ideas. Guiding a client through the E-2 process always requires an understanding of the general economic climate as well as some business sense. For entrepreneurial and creative practitioners, this is a particularly interesting time, where your expertise and talent will make a difference in your client’s immigration process. It’s your time to shine before the storm subsides and we all go back to our regular cases, with reliable timelines and a sound administration.

Paris, France Consular Post Visa Issuance Comparison October 2019 v. October 2020 E-2 Investor Visas Issued Fiscal Year 2016-2020

About Sarah

Originally from France, she relocated to Los Angeles, California, in 2010. Since 2016, Sarah has been practicing business immigration with a concentration on E-2, O-1, and EB-1A. Sarah is currently the Chair of the Immigration Committee of the American Bar Association, young lawyer division.