Launching a business in the United States with an E-2 visa is both exciting and ambitious. However, for many entrepreneurs, thoughts also turn to longer-term immigration options. One of the most frequently asked questions we receive is whether one can work on an E-2 visa while the application for EB-2 is still pending.
The answer makes a difference because it fosters what you can do to keep your legal status while waiting for USCIS to resolve your green card case.
Understanding the Difference Between E-2 and EB-2 NIW
The E-2 visa permits nationals of treaty countries to invest in and run a business in the United States. It is temporary, does not directly result in a green card, and requires you to keep your business running. In contrast, the EB-2 NIW is an immigrant visa category, which will result in a green card if you qualify for it. It is going to require somebody having a master’s or doctorate-level education, or being an individual of exceptional ability. Also, individuals have to be able to demonstrate that their work is in the national interest.
Your E-2 visa doesn’t expire while you are waiting for your EB-2 NIW approval, as long as it is maintaining its eligibility. This has the result that you’re required to be open for business and risk your investment. If you shut down your business because you trust that your EB-2 NIW will succeed, you are taking the chance of losing E-2 status. If you require assistance in dual visa pathways, feel free to contact us at the Law Office of Olena Manilich.
Can You Work During the EB-2 NIW Process?
Yes, you can continue working pursuant to your E-2 visa while USCIS adjudicates your EB-2 NIW petition. The standard is not whether you have to undergo the labor certification process all over again, but are seeking a determination. Despite changes in business, location, and scope of employment, your actions do not undermine the prospects of future success. If you operate a restaurant in NY under an E2 and want to look for EB-2 NIW. You should manage it until your EB-2 NIW is approved and adjust your status. If your business goes out of business too soon. You could be denied your application for a green card due to having lost its valid grounds.
We commonly witness clients attempting to prematurely redirect attention on their EB-2 NIW projects. This is a fine line, and it can be difficult to walk when representing yourself in a legal case. However, with the right legal guidance, you can put yourself in the best position for success. If you’re at all confused and need help, let’s schedule your consultation and talk about it so that we can help you avoid noncompliance.
Examples and Potential Costs
Consider a founder from Spain operating a tech startup on an E-2 visa. The startup serves as the foundation for the E-2 classification, and the entrepreneur files EB-2 NIW on behalf of themselves with an AI tool for healthcare. They also have to keep their startup running during the EB-2 NIW process, including paying employees and keeping investment levels where they should be. They forfeit their legal right to work if they shut down the startup too soon.
Fees depend on how you organize your filings. Typical government filing fees for the EB-2 NIW petition itself are roughly $700. If you file for adjustment of status, that can tack on around $1,440 per applicant. Attorney fees vary depending on the complexity of your case, but generally fall in the $6,000 to $10,000 range for a combined E-2 and EB-2 NIW strategy. They may seem like high costs, but they’re low compared to the risk of losing status. If you’d like to know which fees may apply to you, feel free to contact us and discuss your case!
Transitioning From E-2 to Green Card
In case your EB-2 NIW petition is approved, you would be able to either adjust status in the U.S. or process through consular abroad. Until you secure that approval, though, you need to keep your E-2 visa valid by continuing to satisfy its requirements. The two processes are parallel, but only one allows you to contribute right now — the E-2 visa. Once you have been granted permanent residency, you can grow beyond an E-2 business and pursue other projects with no limitations.
The immigration system affords opportunities but also allows for confusion. Entrepreneurs often under the misconception that filing an EB-2 NIW can waive their E-2 responsibilities. Unfortunately, that error could lead to a denial. To prevent this, view our visa lawyer services and let us help walk you through the procedure
Final Thoughts
You can work on your E-2 visa and file under EB-2 NIW while you wait. But only to the extent that you can maintain your E-2 business in good standing. Applying for a green card does not alter your existing work rights. Until you get a green card, your safest bet is to treat your E-2 business as if it were your base.
If you are interested in a personalized plan that takes care of your business, family, and future in the United States, then schedule a consultation with The Office of Olena Manilich to start your successful case!
