Making a change to your business while holding an E-2 visa can be a huge decision. Whether you’re pivoting to a new industry, merging with another company, or restructuring your business operations, there’s a lot to consider. If you’ve ever wondered, “Can I change my business on an E-2 visa?” then you’re not alone.
Changing your business type is possible, but it’s important to understand the process and potential risks involved. Small missteps could jeopardize your visa status, so it’s crucial to follow the right steps. In this blog, we’ll guide you through the rules, the necessary steps to follow, and the impact these changes could have on your visa. Making the right choices can help you keep your E-2 visa and your business moving forward.
Can I Change My Business on an E-2 Visa: Rules You Need to Follow
Yes, it is possible to change your business while holding an E-2 visa, but the process depends on the type of change you’re making. In that case, you’ll need to follow specific steps to ensure you stay compliant with USCIS rules and maintain your visa status. Steps to Change Your Business on an E-2 Visa:
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Determine the Type of Change
The first step in the process is to evaluate what type of change you are making. Changes can be broadly categorized as substantive or non-substantive.
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Substantive Changes:
These are significant changes that alter the core structure or nature of your business. Substantive changes could include moving to a completely new industry, merging with another business, or making a major shift in operations. These kinds of changes will require USCIS approval.
- Example: If you’re moving from running a restaurant to launching a tech startup, you’re making a substantive change. The nature of the business has shifted drastically, and USCIS will need to review the new business to ensure it continues to meet the E-2 visa requirements.
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Non-Substantive Changes:
These are minor adjustments that don’t fundamentally alter the business’s core structure. Non-substantive changes could involve adding new product lines, modifying internal processes, or changing the way the business operates without altering the industry or ownership.
These changes do not require USCIS approval, but you should still document them and ensure they comply with the visa’s requirements.
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Notify USCIS About Substantive Changes
If you decide to make a substantive change, you will need to file an amendment or a new visa application with USCIS. Failing to report substantial changes can jeopardize your E-2 status. Here’s what you’ll need to do:
- File an Amendment: You may need to file a Form I-129 to amend your visa petition and provide updated details about your business.
- Submit Documentation: This could include your updated business plans, financial statements, and evidence that your new business still meets the E-2 visa requirements.
E-2 Visa Requirements
No matter how much you change your business, it’s important that it continues to meet all E-2 visa requirements. USCIS will evaluate whether the new business still qualifies for the visa based on three main criteria:
- Substantial Investment: Your investment must still be enough to ensure the success of the business and be substantial in comparison to the total capital needed. The business must be able to support you and your family.
- Active Involvement: The E-2 visa requires that you continue to actively manage the business, i.e., you have 50% ownership in your business. Passive investment, where you are merely an owner but not involved in the day-to-day operations, doesn’t qualify under the E-2 criteria.
- Non-Marginal Business: Your business must not be marginal, meaning it should generate enough income to support both you and your family. It must show potential for growth and job creation for U.S. workers.
- Nationality of a Treaty Country: To qualify for the E-2 visa, the applicant must be a citizen of a country that has a treaty of commerce and navigation with the United States. Only citizens from these treaty countries can apply for the E-2 visa, so it’s crucial to confirm your country’s treaty status before starting the application process.
- Intent to Depart the U.S.: The E-2 visa is a non-immigrant visa, meaning applicants must show an intention to leave the United States once the visa expires. Even though the visa can be renewed multiple times, applicants must demonstrate that they will depart the U.S. if they do not renew the visa.
If you want to change your business type, you must consult with an immigration attorney, such as Sweta Khandelwal, before making any significant changes.
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Transferability of the E-2 Visa
The E-2 visa is tied to the specific business or investment that the visa holder initially applied for. When considering a change in business or even selling the business, the E-2 visa holder must understand that it cannot be directly transferred to another business or entity. Below is a breakdown of what happens in different situations:
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Visa Transfer to E-2 Company’s Parent or Subsidiary
If you’re currently in the U.S. on an E-2 employee visa, you may be able to work for your employer’s parent company or subsidiary without needing to change your E-2 visa status. This means that if you want to transfer from the current business to a related entity, there’s no need to apply for a new visa or amendment, as long as the following conditions are met:
- A Qualified Corporate Relationship
- Executive, Supervisory, or Essential Skills
- No Change to the Terms and Conditions of Employment
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Selling the Business
When the E-2 visa holder sells their business, the visa holder’s E-2 status may be affected. This is because the E-2 visa is directly tied to the original investment and the original business entity. Once the business is sold, the original investor may lose their visa status unless the new owner applies for their own E-2 visa.
New Owner’s E-2 Visa:
The new owner of the business must apply for a new E-2 visa. The visa cannot be transferred from the previous owner to the new one. The new owner will need to demonstrate that they meet all of the E-2 visa qualifications.
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E-2 Visa to Other Visa Types
If the E-2 business is sold or is acquired by a U.S. company, and the E-2 visa holder no longer meets the requirements for the E-2 visa, they may need to transition to another type of visa. Common alternatives include:
- L-1 Visa: If the investor or employee is being transferred from a foreign business to a U.S.-based parent company or subsidiary, they may apply for an L-1 visa. The L-1 visa is for intra-company transferees and may be a suitable alternative if you have a qualifying relationship with the new business entity.
- EB-5 Immigrant Investor Visa: The EB-5 visa allows investors to obtain permanent residency (green card) in the U.S. by making a substantial investment in a U.S. business. To qualify, the investor must generally invest at least $1 million (or $500,000 in targeted employment areas) in a new commercial enterprise.
In addition to the investment, the business must create at least 10 full-time jobs for U.S. workers. This visa offers a path to a green card for both the investor and their immediate family members.
Unlike the E-2 visa, which is a non-immigrant visa, the EB-5 offers a direct route to permanent residency, allowing investors to live and work in the U.S. indefinitely.
Also Read: E-2 Visa to EB-1C Green Card Path
However, these steps are not without risks; you must understand them closely to avoid these bottlenecks.
Impact on Visa Status and Risks of Business Changes
Holding an E-2 visa while changing business type can come with significant risks if not done properly. It’s crucial to understand the potential consequences of not reporting changes and failing to meet USCIS requirements:
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Denial of Visa Extension
If USCIS is not informed about business changes, it could result in the denial of your visa extension or renewal. USCIS requires up-to-date information about your business to verify that you remain compliant with visa conditions.
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Loss of E-2 Status
Failing to report substantive changes to your business could lead to the loss of your E-2 status. If this happens, you may be required to leave the United States, which could severely affect your ability to stay and manage your business.
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Denial of Visa Application
If business changes are not handled correctly or the necessary amendments aren’t filed, USCIS could deny your visa application. This includes filing an incorrect or incomplete Form I-129, or failing to include Supplement E when necessary.
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Legal Consequences
Not reporting business changes or failing to comply with USCIS requirements could result in legal consequences, including the loss of your visa. These can include restrictions on future visa applications or other immigration benefits, making it more difficult to obtain visas in the future.
If you’re considering transferring to a parent company or subsidiary, or selling your business while maintaining your E-2 visa status, Contact the Law Offices of Sweta Khandelwal.
Conclusion
Every step, from determining the type of change to ensuring compliance with USCIS, needs careful attention. The last thing you want is to jeopardize your E-2 status due to a small oversight. To keep your visa intact, always report substantive changes, file the necessary forms, and seek professional legal guidance to ensure you’re on the right track.
Consulting with experts like Sweta Khandelwal is crucial to handling these complexities. It’s a big decision, and you don’t want anything to stop living your future in the U.S. That’s why you need to Contact the Law Offices of Sweta Khandelwal for guidance. Stay proactive and compliant by reaching out to The Law Offices of Sweta Khandelwal today, and you’ll be able to continue managing your business while staying in the U.S.
Disclaimer
Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.
