A question we often hear during our free consultations scheduled through https://regattalex.com/:
“I have a pending asylum case, but it has been taking a while, can I still obtain an E-2 investor visa?”
The answer is more nuanced than many applicants expect.
A pending asylum application does not constitute a valid nonimmigrant status under U.S. immigration law; rather, it provides a period of authorized stay. Because a change of status to E-2 generally requires the applicant to be in valid nonimmigrant status, this option is not available while an asylum application is pending.
The high-risk alternative is to depart the United States and apply for an E-2 visa at a U.S. consulate abroad. While it is technically possible, it carries significant risks for individuals with a prior or pending asylum claim.
Why is consular processing risky in these cases? The E-2 visa requires the applicant to demonstrate an intention to depart the United States upon the expiration of their authorized stay. This requirement may be viewed as inconsistent with a prior asylum application, which is based on a claim of fear of returning to one’s home country.
The issue may become even more complex if the E-2 visa is sought from the applicant’s country of origin, as a consular officer may question why the applicant is now able to return to that country after previously seeking protection from it, and what circumstances have changed.
These cases require careful, fact-specific analysis before taking any steps.
