E2 Visa State Department Update March 2022

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides a brand-new update from the U.S. Department of State regarding the status of E-2 Treaty Investor Visa processing at Consulates and Embassies worldwide. Please note that this information is being provided as of March of 2022.

Want to know more? Keep on watching for all the details.

Overview

In the past few months, E-2 visa processing times have varied significantly due to the suspension of routine visa services at all U.S. Embassies and Consulates, a move that was announced by the Department of State in July of 2020. This suspension occurred in response to significant worldwide challenges posed by the Coronavirus pandemic. Since then, operational capacity has continued to be limited for non-immigrant visas at most U.S. Embassies and Consulates resulting in delays in providing visa interview appointments, including for E-2 visa investors. To make matters worse, the Department of State put the processing of non-immigrant visas on the back-burner, giving priority to immigrant visa petitions including family-based petitions and fiancé(e) visas. In this post, we provide you with the most up to date information regarding current processing times as of March 2022 for E-2 investors to receive an appointment at Consular posts abroad.

Not only has there been a sharp decline in E-2 visa processing at most Consulates and Embassies worldwide, but some posts have refused to accept E-2 visa applications altogether. Such Embassies that have refused to accept E-2 visa applications include U.S. Embassy Ankara, Turkey; U.S. Embassy Bogota, Colombia; and U.S. Embassy Bridgetown, Barbados.

The U.S. Embassy in Bogota, Colombia for instance has not adjudicated any E-2 visa applications for more than 1 year, according to recent information provided by the U.S. Department of State.

In a recent meeting between the American Immigration Lawyers Association (AILA) and the U.S. Department of State, the government provided more information regarding E-2 visa processing delays. Here is what they had to say.

  1. Why did several Embassies and Consulates halt the processing of E-2 visas completely?

In response to the pandemic, the U.S. Department of State adopted a four-tiered prioritization schedule designed to triage the processing of immigrant visa applications according to prioritization standards set by U.S. Congress. Unfortunately, non-immigrant visas were not given a place on the prioritization schedule and visa appointment slots were provided based upon each Consular post’s discretion. As a result, many Consulates and Embassies began to suspend the processing of E-2 non-immigrant visas altogether to make room for the processing of immigrant visas. This forced many prospective E-2 investors to come into the United States utilizing other non-immigrant visas and then file a change of status application with the United States Citizenship and Immigration Services (USCIS) to receive E-2 visa authorization. However, this ultimately did not solve the dilemma of many investors, because a change of status application approved by USCIS only grants the investor the ability to work in E-2 status while in the United States for a 2-year period. An approved change of status is not the same as a U.S. visa and does not give investors the opportunity to return to the United States after temporary foreign travel. This method was utilized by some as a last resort, because of the inability of their Consular post to process E-2 visa applications.

Some Consular posts and Embassies have viewed this method with suspicion and have recently been issuing visa denials based upon the investor’s previous change of status filing with USCIS during the pandemic. Certain officers have deemed the change of status process as misrepresentation despite the process being entirely legal. We have seen this occurring at the U.S. Embassy in Tel Aviv, Israel; London, England; and Paris, France. We encourage applicants to be very cautious before deciding to file a change of status application with USCIS and first consult with an experienced attorney to fully discuss the risks involved.

It was not until recently that some Consular posts began to re-evaluate E-2 visa processing and began to resume the acceptance of these applications and scheduling visa interview appointments on a limited basis. Because every Consular post is experiencing their own limitations, investors are advised to email the specific Consular post or Embassy where they wish to apply to ask whether the post is accepting applications, the application procedure (page limit, method of delivery, tab requirement etc.), and the approximate waiting period for a visa interview.

  1. Is there a particular way that Embassies would like to see E-2 visa applications presented to facilitate and speed up the adjudication of cases?

The Department of State indicated that every Consular post and Embassy follows a discretionary process to adjudicate E-2 visas which includes consideration of their workload, current resources, and personnel available to handle the processing of these visas. Applicants are encouraged to be proactive and review the webpage of their Consular post or Embassy to determine the application procedure and approximate processing time for adjudication. It is important to highlight that Embassies and Consulates have very specific requirements for filing the E-2 visa application, including page limits, required supporting documentation, formatting requirements, and certain delivery requirements. Failure to follow and abide by the Embassy’s specific instructions can result in the rejection of your case. Applicants that are unclear regarding the filing procedure should email their Embassy or Consulate directly seeking clarification.

  1. Will the Department of State find a way to centralize and create a uniform way to process E-2 visa applications, given that E-2 visa filing instructions vary widely from post to post?

The Department of State has said that they are open to receiving public comments from investors and attorneys to try to improve the filing process for E-2 visas. For now, however the reality remains that applicants must understand the filing instructions at their specific Embassy or Consulate, including all requirements that they must abide by for their applications to be successfully processed. Not all E-2 visas are the same, and not all Embassies are the same, therefore you must pay careful attention to the requirements of your specific post.

The Bottom Line

Thinking of filing your E-2 visa application at an Embassy abroad? We encourage you to seek the advice of an experienced immigration attorney to fully understand your obligations and the requirements of your specific Consular post or Embassy. Every post has their own specific filing instructions and procedures, therefore it is important to know in advance what will be required of you. In addition, if you received an approved change of status E-2 visa application from USCIS during the pandemic, it is important to discuss these details with your attorney so you are well prepared during your interview. As mentioned, certain posts have been increasingly tough on investors that received approved change of status applications while on another visa type in the United States.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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