Are you an E-2 Employee Visa holder? Have you been fired or laid off by your employer? If you have been fired or laid off while on an E-2 visa you’ll need to act fast. Read on to find out what happens after having your employment terminated while on an E-2 Visa.
What is an E-2 Visa?
An E-2 visa falls under a nonimmigrant classification that allows a foreign national to be admitted to the US while investing a substantial amount of capital in a US business. E-2 visas are specifically intended for foreign nationals from nations that maintain a treaty of commerce and navigation with the United States. Some general qualifications for an E-2 Visa include:
- Being a national of a country with which the US maintains a treaty of commerce and navigation;
- Having invested or be actively in the process of investing a substantial amount of capital in a legitimate, bona fide enterprise in the US; and
- Seeking to enter the US solely to develop and direct the investment enterprise.
You may also qualify for an E-2 visa if you are an employee of an organization or individual who qualifies under the criteria listed above. If you are an employee of a treaty investor you must meet the following criteria:
- Be the same nationality of the principal alien employer;
- Meet the definition of “employee” under relevant law; and
- Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications ie) appropriate certifications or degrees to perform the duties expected of your employer.
After meeting such criteria, the conditions of the E-2 Visa requires the beneficiary to work only for the employer/ company that the E-2 visa was approved for. The only exception is working for the approved organization’s parent company or one of its subsidiaries. Therefore, your status as an E-2 visa holder is contingent on your employment. If you were terminated from your job, your E-2 status is in jeopardy.
60-day Grace Period
Luckily, upon termination, you will have a maximum of 60 days or until the expiry date of your E-2 visa (whichever period is shorter) to remain in the United States and maintain your E-2 status. The 60 days begins the day after termination or the last day for which your salary or wages were paid.
If you are no longer interested in remaining in the United States, you may leave immediately or within the 60 day grace period. However, if you intend to remain in the US for longer, these next 60 days are critical.
You may also be interested: Comparing and Contrasting the L-1 and E-2 Visas
Portability/ Change of Status
Unlike other employment-based visas, there is no employer portability for E-2 visas: you cannot maintain E-2 status by switching between different employers. The conditions of the E-2 visa require that you work for your approved E-2 treaty investor employer for the entire duration of your legal status. Therefore, being hired by another employer during these 60 days will not help you maintain your E-2 status. If, however, you are hired by another employer, they will be required to file a new petition for you.
The best solution to being terminated from your E-2 employer is to first find another employer and employment, and have them file another E-2 visa or other temporary work visa petition for you to change your status during the 60 day grace period. If you file a visa petition with a change of status prior to the end of your 60 day grace period, upon approval of your petition, you will not accrue unlawful presence even if the application is pending after the 60 days. If your petition is denied or if you fail to file a change of status application prior to the ending of your 60 day grace period, you will accrue unlawful presence which could negatively affect your chances of obtaining any sort of legal status in the United States. Therefore, if you are unable to find new employment and file a petition within the grace period, it is strongly recommended that you depart the U.S. before you accrue unlawful presence and are at risk of being subject to the three-year bar. You can always apply for a new visa petition from overseas and return to the U.S. on the new visa.
There are various alternative visa options in this situation. However, sometimes time may be against you and you will need to make decisions that comply with immigration laws in the long term. We can help you determine which visa is the most appropriate and how to move forward. It’s imperative that as soon as your employment is terminated, you come up with a plan of action. Don’t wait until your time runs out! Schedule a consultation with our experienced immigration attorney today!
