What if your E-2 Change of Status (COS) application is denied after your visitor status has expired?
There are a few immigration consequences that could impact your ability to obtain future visas to re-enter the United States in the future.
Understand the risks so you can take control, minimize uncertainty, and reduce stress as much as possible throughout the process.
What Happens If Your E-2 COS Is Denied After I-94 Expiration?
Once your E-2 Change of Status application is denied after your I-94 expiration date, here’s what can happen:
- You’re considered overstayed in the U.S. without authorization from the date of denial
- Each day you remain in the U.S. after denial, this adds to your unlawful presence
- Your ESTA or B1/B2 visa will be automatically cancelled
- Future U.S. visa applications may be denied or flagged
- Any new visa or ESTA approvals may come with increased scrutiny during entry into the U.S.
In case you’re not familiar, applying for a Change of Status (COS) to E-2 means submitting your E-2 application while physically inside the U.S. The application is submitted to the U.S. Citizenship and Immigration Services (USCIS) and does NOT have an interview process. This option allows E2 investors and their family to remain in the U.S. while waiting for a decision on their case. This is different from applying through a U.S. Embassy abroad, which requires E2 investors and their family to leave the country and attend a visa interview at the embassy.
Curious about which option is right for you? Check out our video where we break down the pros and cons of Change of Status vs. applying abroad.
Step-by-Step Timeline: How to Safely Apply for an E-2 COS Without Overstaying
To avoid unauthorized illegal status from denial fallout, consider this timeline to structure your E-2 COS application, if it is available to you. Not all individuals qualify for a change of status.
IMPORTANT: U.S. policy prohibits visitors from having preconceived intention to change visa status at the time of applying for B1/B2 or seeking entry to the U.S., and requires the visitor to intend to depart the U.S. within the authorized stay. If the border immigration officer suspects that you may have intention to change status during your visit, then you could be denied entry. Well after entering the U.S., usually waiting at least 2 months after entry, it is possible to change your mind due to unforeseen circumstances to decide to apply for status change in the U.S., if you properly enter the U.S. as a B-1 business visitor.
Step 1: Complete Your Investment within 2–2.5 Months After U.S. Entry
Imagine you have 5.5 months remaining in the U.S. as a B1 business visitor. This does not leave much time.
Most of our E2 clients take 2-5 months to complete their investment. However, if you are considering a change of status then you have a very short time (2 – 2.5 months) to complete your investment which typically includes:
Start by completing your qualifying E-2 investment. Most of our E2 clients take 2–5 months to complete their investment, however if you are already inside the U.S. and have an option to change status then your timeline needs to be 2-2.5 months.
The timeline to complete an E-2 investment depends largely on the type of business you choose. For example, launching a startup service or consulting business typically takes less time than establishing a brick-and-mortar restaurant, which involves more permits, build-out, and staffing.
If you're purchasing an existing business, the timeline will also depend on how quickly you can identify a business that meets E-2 visa requirements, negotiate terms with the seller and landlord, and complete the fund transfer to either the seller or into escrow.
The time to complete an investment varies depending on how prepared you are in advance.
We guide our clients early on by helping them understand what qualifies as an acceptable source of funds and what supporting documents to gather. This preparation allows the investment process to move forward efficiently once they’re ready to transfer funds and start spending on the business.
Important - If you expect the investment process to take more than 2 months, then consider speaking with an experienced E-2 attorney early on BEFORE visiting the U.S. This will help structure your timeline with less stress, delays, and risks.
Step 2: Provide All Documentation to Your Attorney (2.5–3 Months BEFORE I-94 Expiry)
Don’t wait until the last minute. An E-2 COS application can be around 300–600 pages thick including:
- USCIS forms
- E-2 support letter
- Proof of investment
- Proof of lawful source of funds
- Business plan
- Investor’s qualifications
- Business permits/licenses
If working with an E-2 attorney, allow them time to review everything, provide feedback and strategy on weaknesses, and to prepare a strong application. Many of our E-2 clients spend an additional 1- 6 weeks to follow our feedback recommendations before submitting their E2 application. Without this allotted time, you won’t be able to strengthen your evidence and risk submitting a lower quality E-2 application.
Step 3: Submit Your Application (At Least 1 Month Before I-94 Expiration)
Make sure your application is submitted before your visitor status expires.
If you can, opt for Premium Processing, to receive a decision from the USCIS within 15 business days. Consider applying:
- 30–35 days before I-94 expires (minimum)
- 45–55 days ahead if you anticipate receiving a Request for Evidence (RFE) may be issued
This allows buffer time to depart the U.S. if the application is denied or if there is a RFE, then time to prepare a response.
If you’ve found this level detail helpful, we invite you to download our free E-2 Visa eBook and join our Facebook group E2 Visa Success Tips Support & Resources.
The Best Strategy Is To Have A Strong E-2 Application
The strength of your application can be the difference between approval, RFE, or denial. Ensure the following:
- Traceable source of funds
The less complicated the source and trail of funds the better because it allows for clarity and faster processing.
- Non-marginal business
The business needs to demonstrate that it can support the E2 investor and their family with a comfortable living in the U.S. and create American jobs.
- Proof of business investment and investors qualifications
The investment amount needs to be substantial and the investor must demonstrate they have the ability to own and operate the business successfully. Anything the business needs to operate must be ready such as business license/permits.
Is It Realistic to Meet This Timeline?
It is possible, we’ve had clients successfully achieve this.
The reality is most investors can’t stick to this strict timeline due to unexpected delays and hurdles along the way.
As a result, many end up submitting their Change of Status application just days before their status expires. At that point, the safety net of receiving a decision before their status expires is no longer realistic. If a denial occurs, the risk of accruing unlawful presence becomes very high.
This is why we say the best strategy is focus on having a strong E-2 application to minimize denial and optimize for approval.
Contact us to strategize your E-2 timeline.
Summary FAQ
What are the consequences of a denied E-2 Change of Status after my I-94 expires?
If your E-2 Change of Status application is denied after your I-94 has expired, you are considered as having unauthorized illegal status. Each day you remain in the United States after the denial, you are accruing unlawful presence. This can result in the automatic cancellation of any existing ESTA or B1/B2 visa and can significantly harm your chances of obtaining future U.S. visas. Even if a future visa is granted, you may face increased scrutiny during future U.S. entries.
How does applying for E-2 Change of Status differ from applying at a U.S. Embassy?
Applying for E-2 Change of Status means submitting your application while physically inside the U.S. This option does not require a visa interview at a U.S. Embassy and allows you to remain in the country while the application is pending. Conversely, applying from abroad requires you to leave the U.S. and attend a visa interview at a U.S. consulate or embassy. Each method has its own advantages and drawbacks, and the choice depends on your timeline, immigration history, and overall goals. Watch our video for differences between change of status versus applying for the E-2 visa at a U.S. Embassy abroad.
How far in advance should I submit my E-2 application?
It is highly recommended that you submit your E-2 Change of Status application using premium processing at least 30 to 35 days before your I-94 expiration date. This allows time for mailing, processing, and receiving a decision. If you suspect your case may prompt a Request for Evidence (RFE), it is wise to apply 45 to 55 days in advance to allow sufficient time for an attorney to respond.
Where can I find additional resources on the E-2 Visa?
- Download our free E-2 Visa eBook for a detailed overview of the process
- Join our online E-2 Visa community
Please Note: This blog is intended solely for informational purposes and should not be regarded as legal advice. As always, it is advisable to consult with an experienced immigration attorney for personalized guidance based on your specific circumstances.