Can an EB-5 investor apply for an E-2 visa while waiting for I-526 approval?

There is no prohibition against an EB-5 investor applying for an E-2 visa with a pending I-526 petition. Applying for an E-2 visa will not compromise the adjudication and outcome of the EB-5 investor’s I-526 petition. However, because the EB-5 investor has already expressed intent to immigrate through their filing of Form I-526, it may be challenging for them to prove the nonimmigrant intent required for the E-2 visa.

The EB-5 investor’s E-2 visa application should not be denied simply because they filed an I-526 petition. However, they must ensure they can demonstrate their intent to depart the United States upon termination of their E-2 visa status. Any EB-5 investor with a pending I-526 petition who is interested in applying for an E-2 visa should consult an immigration attorney for guidance on the differences between the E-2 visa and the EB-5 visa.

E-2 Visa

The E-2 visa is a nonimmigrant visa that allows foreign nationals to temporarily enter and work in the United States based on an investment in a U.S. business. It is available only to citizens of treaty countries. The U.S. Department of State (DOS) provides a full list of current treaty countries on its website.

To qualify for an E-2 visa, the EB-5 investor must be a citizen of a treaty country, have made a “substantial” investment into a qualified U.S. business, and is seeking to enter the United States to develop and direct the business they have invested in.

Nonimmigrant Intent

While the E-2 visa is a temporary nonimmigrant visa, it allows the visa holder to renew their stay indefinitely, provided the visa holder continues to meet the E-2 visa conditions and requirements. This means the E-2 visa holder, whether an investor or employee, must continue to work in the capacity for which they were originally approved. Though there are no limits to how many times they may renew their E-2 visa, the visa holder must still maintain an intent to depart the United States upon the expiration or termination of their visa. This can be done by providing evidence of a foreign permanent residence or family ties.