Overview - Change of Status vs Consular Processing

The first step in the formal E-1 treaty trader visa or E-2 treaty investor visa application process is to decide whether to use:

(1) Change of Status to E2 status or E1 status from a different non-immigrant status in the United States; or
(2) Consular Processing to apply for an E1 or E2 visa in a US consulate and enter the US using that E2 or E1 visa.

This page explains this choice and some of the advantages and disadvantages of both options.

What is Immigration “Status”?

Every person who is not a US Citizen and is lawfully in the United States has an immigration “Status”. “Status” denotes the way in which a person is present in the United States and what that person is permitted to do in the United States.

Status is initially conferred at the point to entry to the United States and is usually determined by the visa used to arrive at the US border. Thus, a student seeking to enter the US using an E1 treaty trader visa will usually be admitted in “E1 Status”.

The Status in which an applicant is admitted to the United States is in the hands of the border officer. On rare occasions the Status of a foreigner admitted to the United States might not match the status of the visa used to get to the US border.

What is a Visa?

A US visa is a document that enables you to arrive at the US border and seek admission to the United States. A visa and its validity dates are of no meaning while you are present in the United States.


Regardless of the validity period of an E2 or E1 visa, an E visa holder is typically admitted to the United States for a period of two years. Stated differently, an E visa holder is granted two years of E Status when entering the United States.


What a E2 Treaty Investor Visa or E1 Treaty Trader is Not

A visa does not guarantee entry to the United States in E2 Status. When you arrive at the US border a US border officer who works for CBP will determine your eligibility to enter the US in E2 Status.


CBP is the US government agency that controls the US borders. The US State Department make visa decisions. As the US State Department is a different Government agency a decision from the US State Department to issue and E2 visa is not binding on CBP. One way to think of your E visa is a request from the US State Department to CBP to admit you to the US in E2 Status.


Occasionally either a two year period of stay is not granted or the officer at the US border makes a mistake entering data to the US Government’s computer system. This can result in periods of authorized stay/status of less than two years. It is essential to check the period of stay granted at the US Border by visiting the US Government’s I-94 download page.


What is Change of Status?

Change of Status allows a person who is present in the United States in a particular status to “change status” to a different category without leaving the country. This is NOT a visa application.


How Can an E2 Investor Change of Status to E2 Status?

Typically, an E2 investor enters the USA using a B1-B2 visit visa for the purpose of investigating their E2 business. Having entered the US using a B1-B2 visa the E2 investor will be in B1-B2 status.

While B1-B2 status does allow an E2 investor to investigate and even set-up his business in the US he/she cannot work in that business, operate it or direct it from within the US. Examples of permitted activities in B1-B2 status would include:

  • visiting the business site;
  • incorporating a US business;
  • conducting due diligence on the business;
  • finding potential employees for the US business;
  • opening a bank account

Once the investor is ready to operate and work in his/her E2 business the investor can “change status” to E2 status, enabling the investor to work in and operate the business.

What is Consular Processing?

The only way to obtain an E2 visa is through Consular Processing at a US consulate outside the United States. Consular Processing is simply the process of applying for a visa at a US consulate.


Why Duration of E2 Visas Vary by Nationality and by Issuing Consulate

The maximum initial validity period of an E2 visa and the number of entries allowed to the US are capped based on the Nationality of the Investor. Details by nationality are given in the E visa reciprocity table.

Consular officers can grant E2 visa validity periods less than the maximum prescribed in the reciprocity table. The tendency of consulates to do this varies by consulate and consular officer.

Advantages of Consular Processing Vs. Change of Status

Change of Status (“COS”) Consular Processing
Location of Applicant Must be in lawful status in the United States. Must be outside the United States at the time of consular interview.
Consistency USCIS can be inconsistent and interaction with the officer responsible for adjudication of your case in advance is not possible. It is possible to interact with consulates and seek their general view on particular issues of E2 visa law.

Unless the attitude of consulates to specific issues is known in advance they can be less consistent.
Visa Does not grant a visa. Persons with COS to E2 Status must apply for an E2 visa outside the United States if they depart and wish to return to the US. Grants a visa for entry to the United States.
Processing Speed Premium processing is available meaning that an application can be approved in two weeks. No premium processing. Adjudication time varies significantly by consulate. See DOS visa adjudication times by consulate.

Expedited processing is commonly given on request in business cases but is not guaranteed.
Interview No interview is necessary. Consular interview, limited exceptions apply.
Government Processing Fees At the time of writing a fee of USD 460 is due. However, this can be changed by USCIS. Check here for the latest fees. Fees vary by consulate based on reciprocity. Consular fees can be more or less expensive than COS fees.

For example, which the reciprocity fee in the case of France is 0 the for Australians in currently USD 3,547.00.
Legal Fees and E2 Visa Costs Lawyers generally charge the same for preparing an application, whether COS or Consular. Lawyers generally charge the same for preparing an application, whether COS or Consular.

However, some law firms have foreign offices serving particular consulates. If you want in-person assistance at the consulate there may be additional fees.

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Peter
Peter
3 months ago

We were in a hurry and Verdie and the team were highly responsive and supportive, even when we threw in some curve balls along the way. We had our visas approved without any issues and felt confident and well prepared for document submissions and the interview. I'd certainly recommend this team for an E2 visa process.

Paolo Domingo
Paolo Domingo
3 weeks ago

5 stars and a high five! Thank you Verdie and Etta for assisting us with our change of status application. They were very professional and accommodating with all our questions and concerns throughout the process. Despite the time constraint, we pulled it off and we could not have done this without you guys! Keep up the good work!

Eduardo Salvo
Eduardo Salvo
2 months ago

I received an world-class help in how to immigrate to the USA succesfully! Alex was very open to answer my questions and is definitely a professional in what he does! Strongly recommend this firm.

Amandeep Singh
Amandeep Singh
a month ago

I had talked with Alex Jovy, he was very quick to respond, had a lot of useful information which I was not aware of. Took time out of his day to discuss my situation and was very helpful. They go into a lot of detail which other companies do not. Overall a great service!

Birendra Kumar
Birendra Kumar
2 months ago

It was great to have a first meeting with Alex Jovy on Team and were glad to have fruitful discussion. Alex in-depth knowledge and I will highly recommend Alex for these services.

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