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Can I Change Status from F-1 to E-2?

Published: 12/07/2021

Source: Scott Legal

F-1 visa is a great visa for students who want to study in the U.S. We often get asked whether someone who is in the U.S. on an OPT status can change status to E-2.The answer is yes and this blog post will summarize the timeline when a change of status petition should be filed.

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Common Scenario
You studied in the U.S. and are currently in the U.S. on an OPT. Your H-1B visa registration was not selected in the lottery and you want to stay in the U.S. You want to invest money in the U.S. and start your own E-2 business. Can you do this while you are in the U.S. on an OPT status/during your grace period?

When do I need to submit the E-2 change of status petition?
If you are applying for a Change of Status, then your E-2 Change of status petition has to be received by USCIS before your F-1 status expires (this means anytime while you are working on an OPT or within the 60 day  grace period after you finish working). If your petition is received before then and while it’s pending, you can stay in the U.S. but you cannot work for the E-2 company or any other employer. If you want to start working for the E-2 company as soon as possible, you can pay a Premium Processing fee, which is currently $2,500. This means that USCIS will make a decision on your petition within 15 days, and once the petition is approved, you can start working for the E-2 company immediately.

Applying for an E-2 visa at a U.S. Consulate
In case you want to apply for an E-2 visa at a U.S. Consulate abroad, you can file the E-2 petition at any time, but you will have to leave the U.S. before your F-1 status expires (if you are currently working in the U.S. on an OPT, this means 60 days after your employment ends) (this is assuming that you only filed the Consular petition and did not file a change of status petition with USCIS).  Currently, due to COVID-19, many U.S. Consulates are still backlogged and it may take several months for you to get an interview at the Consulate. Therefore, if you want to stay in the U.S. during the application process and if you want to start working for the E2 company as soon as possible, the change of status procedure as explained above may be a better option for you.

Is it a disadvantage if I am young and I have no former experience with managing a company?
No. While it’s a positive aspect of your E-2 application if you have some prior experience in managing a company/owning a business, it is not necessary for an E-2 visa. However, you will still have to explain in the application what will be your job duties (your job duties should be high level managerial/executive duties, you should not for example be doing a secretary/admin support duties).

Additionally, any experience in the E-2 business industry will be helpful. For example, if you studied IT, you worked in an IT firm on your OPT and you now want to start an IT consulting firm, your prior experience in the industry will still be helpful for the application. With regards to whether an E-2 visa can be granted to graduates/young visa applicants: yes, there is no minimum age limit as to who can apply for an E-2 visa. Sometimes Consular Officers can question whether your projections are realistic/whether you will be able to start manage the E-2 company. That’s why preparing for an E-2 interview is an extremely important part of the E-2 process.

Source: Scott Legal

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