The United States Citizenship and Immigration Services (USCIS) must approve any “substantive changes’ to an E-2 approval of nonimmigrant status. Substantive changes must be approved by filing a Form I-129. The form should be filed by the treaty investor or treaty organization. The requirements for seeking approval of substantive changes are detailed in the Code of Federal Regulations – 8 CFR 214.2(e)(8)

Substantive changes

The approval request for a substantive change to E-2 status is determined by a service professional. Service officers include “U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and/or U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears.”

A treaty alien must file a new application on Form I-129 and E supplement, requesting an extension of their stay in America. For Form 1-129 applications, the applicant must submit evidence supporting his/her eligibility for E classification based on the substantive changes.

Another way to seek E-2 status based on substantive changes is to obtain a visa from a consular officer – which indicates the new terms and conditions for staying in America. The applicant must also apply for “admission at a point-of-entry.”

A substantive change occurs “where there has been a fundamental change in the employing entity’s basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed.” If the employee is working for a subsidiary of a parent investor or organization or enterprise, then that subsidiary work may be considered non-substantive.

Advice about whether new work is a substantive change

It can be confusing to understand whether there is a substantive change. The foreign applicant may file Form I-129, along with the required fee, and a full description of the change – and then request advice as to whether the change is substantive or non-substantive.

Where there are multiple employees, an alien “may request that USCIS determine if a merger or other corporate restructuring requires the filing of separate applications – or whether one I-129 form can be filed (provided the form includes a list of the “related receipt numbers for the employees involved and an explanation of the change or changes.”

Approval of changes to E-2 employment terms and conditions

If the application for new E-2 classification is approved, the service professional should inform the applicant through Form I-797 that:

  • “An extension of stay in nonimmigrant E classification may be granted for the validity of the approved application”
  • The right of the applicant to employment in the US is authorized only for the time the applicant stays in the United States.

If the applicant leaves the US, readmission may be approved “where the alien presents his or her unexpired E visa together with the Form I-797, Approval Notice, indicating Service approval of a change of employer or of a change in the substantive terms or conditions of treaty status or employment in E classification, or, in accordance with 22 CFR 41.112(d), where the alien is applying for readmission after an absence not exceeding 30 days solely in contiguous territory.”

If a change in employment is not authorized that will “constitute a failure to maintain status.”

Contact an experienced immigration lawyer to discuss how you determine if a change in status is substantive and what you or a foreign applicant must do to be authorized to continue to work in the United States.

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