Attending Your consular Interview

As part of your application, the consulate will require you and your family mem­bers to attend an interview. During the interview, a consular officer will examine the data in your application for accuracy, especially regarding facts about the sub­stantiality of the business and the nation­ality of the owners. Evidence of ties to your home country will also be checked. During the interview, you will surely be asked how long you intend to remain in the United States. Any answer indicat­ing that you are unsure about plans to return or have an interest in applying for a green card is likely to result in a denial of your visa. (See Chapter 4 for what else to expect during consular interviews, and what to do if your application is denied.)

Once your E-1 visa is approved, you will probably be asked to return later to pick it up. However, your visa may be approved only provisionally, awaiting security checks, which can add weeks or months to the process.

D. How to apply If You’re in the U. S.

If you are physically present in the U. S., you may apply for E-1 status without leaving the country on the following conditions:

• you entered the U. S. legally and not on a visa waiver

• you have never worked illegally

• the date on your I-94 card has not passed, and

• you are admissible and none of the bars to changing status apply to you (see Chapter 3).

If you were admitted as a visitor with­out a visa under the Visa Waiver program, you may not apply from within the united states. similarly, you can’t take advan­tage of this option if you entered the U. S. using a C (alien in transit), TWOV (alien in transit without a visa), D (crewman),

K-1 (fiance), K-2 (dependent of a fiance), j-1 (exchange visitor), or M-1 (vocational student) visa.

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Your eligibility to apply in the U. S.

has nothing to do with your overall eligibility for an E-1 visa. Many applicants who are barred from filing in the U. S. but otherwise qualify for E-1 status may still apply successfully for an E-1 visa at a U. S. consulate in another country.

There is another problem that comes up only in U. S. filings. It is the issue of what is called preconceived intent. To approve a change of status, UsCIs must believe that at the time you originally entered the U. S. as a visitor or with some other nonimmigrant visa, you did not intend to apply for a different status. If USCIS thinks you had a preconceived plan to use one visa to enter the U. S. with an eye to applying for a different status after getting there, it may deny your application. (You can get around the preconceived intent issue by leaving the U. S. and applying for your E-1 visa at a U. S. consulate in another country.)

In technical terms, what you will be applying for in the U. S. is a change of status. To do so, you’ll need to file an application with USCIS on Form I-129 (Petition for a Nonimmigrant Worker), with accompanying documents to prove your eligibility. If your spouse and chil­dren will be accompanying you, they must file for their change of status on a different form, called Form I-539.

If you decide to apply for a change of status within the U. S., you should realize that you still don’t have the E-1 visa that you’ll need if you ever leave the U. S.—a change of status only gives you E-1 sta­tus. Visas are never given inside the Unit­ed States They are issued exclusively by U. S. consulates in other countries. If you file in the U. S. and you are successful, you will get to remain in the U. S. with E-1 privileges until the status expires.

But should you leave the country for any reason before that time, you will have to apply for the visa itself at a U. S. consul­ate before returning to the United States. Moreover, the fact that your E-1 status has been approved in the U. S. does not guarantee that the consulate will also approve your visa. You’ll have to present a whole new application, and they will

evaluate it with little or no consideration for the previous USCIS decision. For this reason, many people find it easier to leave the u.s. and apply at a u.s. consulate from the start. Preparing the Change of Status application The checklist below will help you prepare the documents and forms for your change of status application.
E-1 change of Status checklist □ Form I-129, with E Supplement (signed and submitted by you, if you're selfemployed, or by your employer). □ Filing fee: $190. □ If your family members are with you and need a change of status, Form I-539 with accompanying fee (currently $200) and copies of your family members' I-94s or other proof of lawful immigration status and of their relationship to you, (such as marriage and birth certificates). One Form I-539 and fee will cover your spouse and all your children. This form is meant to be filled out and signed by your family members, not by your employer. □ If either you or your spouse have ever been married before, copies of divorce and death certificates showing termination of all previous marriages. □ A copy of your I-94 or other proof of your current lawful, unexpired immigration status (except Canadians visitors, who are not expected to have I-94 cards). □ Proof of the nationality of the qualifying business owners. □ Proof that you are a key employee. □ Proof of the existence of an active business. □ Proof that a majority of the company's trade is between the U.S. and your home country. □ Proof that the trade is substantial. □ Documents establishing your intent to leave the U.S. when your status expires, such as deeds verifying ownership of a house or other real property, written statements from you explaining that close relatives are staying behind, or letters from a company showing that you have a job waiting when you return from the United States. □ Cover letter (optional). If requesting quick (premium) processing: □ Form I-907, with $1,000 filing fee.

For further explanation of some of the key items on this checklist, see Subsec­tion C1, above.

Although it is not a requirement, one additional item that you may wish to add to the paperwork package is a cover let­ter. Cover letters act as a summary and index to the forms and documents, and are often used by immigration attorneys or u. s. companies that process many visas for their employees. Cover letters begin with a statement summarizing the facts of the case and explaining why the particular applicant is eligible for the visa. This statement is followed by a list of the forms and documents submitted. If it is carefully written, a cover letter can make the case clearer and easier to process for the consular or usCIs officer evaluating it. This is particularly important in an E-1 visa case where the documentation by itself may require explanation. Cover let­ters must be individually tailored to each case, so if you don’t think you can write a good one, just leave it out and submit only your forms and documents; or hire an attorney to help.

2. Mailing the Change of Status Petition

After assembling the I-129 petition, mail it to the usCIs regional service center listed in the instructions to Form I-129. Currently, only the California and Texas Service Centers accept I-129 petitions for E-1 change of status candidates. USCIS regional service centers are not the same as USCIS local offices—for one thing, you cannot visit regional service centers in person.

Updated: 18th July 2015 — 3:10 pm