E2 visas authorize certain foreign investors and key employees of their companies to work in the US. The COVID-19 pandemic has added complexity to numerous aspects of E2 visas. This article explains new developments that will impact E2 visas in 2021.
The US instituted multiple travel bans during 2020. Some travel bans limit the issuance of immigrant work visas. E2 visas are “non-immigrant” visas and are therefore not impacted by such bans.
Other travel bans limit direct travel to the US from certain regions (eg, the Schengen region). On December 30, 2020, these regional travel bans were extended until March 31, 2021. Because of these bans, travelers with E2 visas face additional hurdles when trying to fly to the US. As discussed below, those hurdles may be overcome by obtaining a National Interest Exception.
National Interest Exceptions
To overcome the regional travel ban and receive special authorization to fly to the United States, E2 visa holders and E2 visa applicants can apply for National Interest Exceptions (NIEs). We describe this more in our previous article about National Interest Exceptions. Procedures for applying for NIEs have been evolving. For support with your application for a National Interest Exception contact us.
Negative COVID-19 Test
On January 12, 2021, the US Centers for Disease Control and Prevention (CDC) issued a new Order requiring proof of a negative COVID-19 test (or documentation of having recovered from COVID-19) for all air passengers who arrive to the US from a foreign country. Even passengers who have successfully obtained a National Interest Exception and/or have been vaccinated against COVID-19 must comply with this requirement, which takes effect on January 26, 2021.
Processing times for visa applications
During the first lockdown, which began in March 2020, US consulates initially stopped processing E2 visa applications. In fact, because of the uncertainty of the pandemic, many consular officers flew back to the US. Consular staff that continued working abroad mostly focused on providing emergency services for US citizens.
In November and December of 2020, many countries locked down again, prompting US consulates in those countries to limit the processing of regular visas. As of the date of this article, it remains to be seen the degree to which current lockdowns will impact timelines for processing E2 visa applications.
Visa interview appointments
In many countries that are in a lockdown, regular visa appointments are not available at US consulates.
Scheduling the interview appointment may be particularly tricky for applicants for E2 visa renewals who are traveling to the consulate from the US. Depending on the guidelines of the country where the US consulate is located, applicants may have to quarantine upon entering that country from the US. Quarantine timelines and rules vary from country to country, and sometimes change. It is therefore important for such E2 visa renewal applicants to closely monitor quarantine rules when selecting a date for their interview appointment. For example, if E2 renewal applicants land in the overseas country on Monday, it would be inappropriate for them to go to the consulate for an interview on Tuesday if they should be in quarantine that day.
When applying to re-register as an E2 business, companies typically furnish evidence that they have become profitable. As we all know, though, 2020 was a hard year for many companies, including E2 companies. If pandemic-related factors (eg, hospitalization of E2 visa holders or lack of customers due to the lockdowns) directly hampered the E2 company’s business in 2020, those circumstances should be explained in the E2 visa renewal application. In such instances, the company’s financial data from the years immediately preceding the pandemic may become more relevant during the E2 visa renewal process.
E2 business plans
Applicants for E2 visas that are launching a new company in the US submit a business plan with their E2 visa applications. E2 visa business plans that are submitted in 2021 can include a risk analysis or address the challenges of launching a new company during a pandemic. Our law firm’s Managing Attorney has published an article regarding methods of de-risking a business plan.
Termination of employees who are US nationals
The revenue generated by E2 companies cannot be marginal. In other words, the company must generate revenue on the scale that will support more than just the salary and living expenses of the owner of the E2 company. The required non-marginality of E2 companies is typically demonstrated by the company’s employment of numerous US nationals. It is therefore important that any COVID-related layoffs be later countered by rehiring of US nationals as soon as commercially viable.
Termination of employees who have E2 Visas
The other issue raised by termination of employees of E2 companies relates to notification to the US consulate that issued E2 visas for certain employees. There are a number of legal issues the E2 employer must consider before deciding whether, when and how to notify the consulate of such a layoff. E2 companies can speak with one of our law firm’s lawyers to discuss those issues before making a decision.
For your E2 visa in 2021, the lawyers of JORDAN COUNSEL are ready to help.