Many visitors arrive on a B-1/B-2 visa with plans to explore business opportunities, then decide they want to invest and run a company in the United States. Making that switch is possible, but it requires careful legal navigation to avoid accusations of misrepresentation or unauthorized employment.

Understanding the basics: B-1/B-2 vs E-2

B-1/B-2 are temporary visitor classifications: B-1 for short-term business activities (attending meetings, negotiating contracts, conducting market research) and B-2 for tourism, medical treatment, or visiting friends and family. They do not authorize local employment or active management of a U.S. business.

E-2 is a treaty investor nonimmigrant classification for nationals of countries that have an investment treaty with the United States. An E-2 investor must show a substantial, at-risk investment in a bona fide enterprise that the investor will direct and develop. More on E-2 requirements can be read at the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State pages: USCIS E-2 Treaty Investors and DOS Treaty Traders and Investors.

Key legal principles to keep front of mind

When a visitor seeks to move from B-1/B-2 to E-2, several core immigration rules apply:

• No unauthorized employment: B-1/B-2 status prohibits engaging in the hands-on operation of a U.S. business. Activities that amount to day-to-day management, hiring/firing employees, or performing compensated work are not allowed.
• No misrepresentation of intent at entry: If the visitor presented the purpose of the trip as tourism or temporary business but actually intended to establish and run a business from the moment of entry, immigration authorities could find fraud or misrepresentation. That can lead to visa revocation and future inadmissibility.
• Maintenance of status: The person must maintain lawful nonimmigrant status until a lawful change to E-2 is approved, or depart and apply abroad. Filing for change of status must be timely to avoid accrual of unlawful presence.
• Choice between change of status and consular processing: A petition to change status from within the U.S. typically uses USCIS filing (Form I-129 for principal E-2 applicants), while consular processing requires leaving the U.S. and applying at a U.S. consulate for an E-2 visa. Traveling while a change of status application is pending usually abandons the application.

Allowed business-related activities on B-1/B-2 and what crosses the line

Not all investment-related activity is forbidden on a visitor visa. Many preparatory tasks are permitted, but active operations are not. Clear documentation showing the nature of activities is essential.

• Generally permitted: Meeting with potential partners, negotiating lease terms, signing contracts for future business activities (where permitted), attending trade shows, conducting market research, opening bank accounts, and exploring locations. These are passive or preparatory acts consistent with visitor status.
• Generally prohibited: Directing employees, performing paid services in the U.S., signing employment contracts as the employer, operating equipment or providing operational services, and managing daily business operations. Such conduct can be treated as unauthorized employment.

US Customs and Border Protection (CBP) and consular officers may look at the visitor’s actual activities and expenditures to decide whether actions remained within the scope of a visitor visa. CBP guidance for international visitors can be reviewed at CBP International Visitors.

Practical, step-by-step strategy to transition without violating rules

Transitioning safely requires a documented timeline, conservative conduct while in B status, preparation of a strong E-2 application, and often professional legal guidance. Below is a practical pathway that investors commonly follow.

1. Evaluate eligibility and plan the investment

Before taking substantive steps, the visitor should confirm treaty nationality, the nature and size of the investment, and whether the business model meets E-2 expectations (bona fide enterprise, not marginal, investment at risk). Careful financial planning and a business plan are essential.

Evidence typically includes incorporation documents, leases, contracts, bank statements showing funds committed or expended, invoices, and a detailed business plan with pro forma financials and job-creation projections. The USCIS page explains the classification and documentary expectations at USCIS E-2 Treaty Investors.

2. Keep activities while on B-1/B-2 strictly preparatory

While still in B-1/B-2 status, the visitor should limit actions to permitted preparatory steps such as site visits, establishing corporate entities, opening accounts, negotiating contracts while avoiding operational control or labor. A clear, contemporaneous record (emails, dated receipts, meeting notes) showing the passive nature of these activities will help if questions arise.

3. Decide: change of status (COS) vs consular processing

There are two common pathways to obtain E-2 classification:

• Change of status within the U.S.—file Form I-129 requesting E classification with USCIS. Beneficial because it keeps the principal in the U.S. while adjudication is pending. Important caveat: traveling while COS is pending will generally abandon the request, and approval grants the right to remain only while in the U.S.; travel outside the U.S. will require consular visa stamping to re-enter.
• Consular processing—depart the U.S., file the DS-160 and attend an interview at a U.S. consulate or embassy abroad. This method is sometimes faster and avoids COS restrictions, but requires leaving the U.S., which may be problematic if the visitor’s B status is close to expiry or if lengthy visa appointment waits exist.

Choice depends on travel plans, timing, and comfort with leaving the U.S. If a visitor files for COS, Form I-129 is the standard petition for principal E-2 classification (see USCIS Form I-129). Dependents typically use Form I-539 to request change of status.

4. File a strong E-2 application with clear evidence of intent and investment

Whether filing I-129 for change of status or preparing for consular interview, the record must show:

• Treaty nationality of the investor.
• Substantial investment—measured in relation to the cost of the business; no fixed dollar threshold but must be enough to ensure the business is not marginal.
• Active investment at risk—funds committed and at risk for business success (escrow, wire transfers, purchase receipts).
• Bona fide enterprise—a real, active commercial or entrepreneurial undertaking producing goods or services.
• Investor’s role—clear evidence that the investor will direct and develop the enterprise (organizational documents, shareholder agreements, job descriptions).

For practical document examples and drafting tips, a detailed business plan, contracts, proof of expenditures, and evidence of funds’ lawful source are critical. Showing a sequential timeline that separates preparatory B-1/B-2 activities from substantive investment steps after approval is helpful.

Timing and travel considerations

Timing is crucial. A change of status petition should be filed before the B status expires. If a visitor’s stay lapses, the person may begin accruing unlawful presence, which can have serious consequences for future U.S. immigration benefits.

Travel while an E-2 change of status is pending generally results in abandonment of the petition; the safe route if travel is necessary is to plan for consular processing instead. Also, consular officers and CBP will scrutinize the applicant’s entry history and on-the-ground activities—consistent, conservative conduct reduces risk at entry or visa interview.

Common pitfalls and how to avoid them

There are several recurring mistakes that lead to problems:

• Working while on B status: Acting as the active manager or performing compensated work before E-2 approval can lead to denial and deportation proceedings.
• Preconceived intent issues: Entering on B-1/B-2 while already intending to work or live in the U.S. as an investor risks allegations of misrepresentation. To avoid this, keep a clear, contemporaneous record showing plans evolved after entry if that is true.
• Insufficient documentation of investment or source of funds: Bank statements alone are rarely enough—clear evidence of the path of funds and risk incurred is essential.
• Poor timing or late filings: Missing deadlines for status maintenance, or traveling at the wrong moment, can jeopardize an otherwise strong case.

Examples to illustrate safe and unsafe approaches

Example of a safe approach: A national of a treaty country visits the U.S. on a B-1 visa to meet suppliers and scout office locations. During the stay, she negotiates a lease and signs but does not manage operations or hire staff. After returning home, she wires funds into a U.S. business account, retains contractors to begin build-out, and then either files Form I-129 for change of status (if still in the U.S.) or applies at the consulate after departing. Her contemporaneous records show the sequence and the preparatory nature of in-country activities.

Example of an unsafe approach: A visitor arrives on B-2 and immediately hires employees, directs daily operations, and pays vendors from U.S. bank accounts. Later, the investor files for E-2 change of status. USCIS or CBP could view those activities as unauthorized employment and may find misrepresentation if the investor had intent to run the business at entry.

When to consult an immigration attorney

Because the line between permitted preparatory activity and unauthorized employment can be subtle and fact-specific, consultation with a specialized E-2 immigration attorney early in the process is strongly advised. An attorney can:

• Review planned in-country activities and advise which steps are safe under B-1/B-2.
• Help structure the investment and corporate documents to reflect the investor’s controlling and managerial role where appropriate.
• Prepare the change of status petition or consular case to minimize risk of denial and show clear separation of preparatory vs operational activities.

E-2 cases are highly document-driven; an attorney’s oversight can make the difference between a smooth transition and a denial that creates long-term immigration consequences.

Practical checklist before filing for E-2 or COS

• Confirm treaty nationality.
• Prepare a detailed business plan and pro forma financials.
• Document the source and path of investment funds (bank transfers, sale of assets, loan documents).
• Maintain contemporaneous records showing B-1/B-2 activities were preparatory only (meeting minutes, emails, receipts).
• Decide whether to file Form I-129 (COS) or prepare for consular processing; plan travel accordingly.
• If filing COS, ensure the petition is timely filed before current status expiration; for dependents, prepare Form I-539 as needed.
• Prepare for a possible interview (if consular) with clear, consistent explanations and documentation.

USCIS resources on petitions and change of status can be found at USCIS I-129 and the general E-2 classification guidance at USCIS E-2 Treaty Investors.

Careful planning, conservative conduct while in visitor status, and a well-documented E-2 petition substantially improve the chance of a lawful, successful transition. Does the investor have a draft business plan or timeline? Sharing that with counsel early will help identify the safest path forward and reduce the risk of a costly immigration mistake.

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.