Filing an I-129 With an Expired E-2 Work Visa

The E-2 visa allows foreign nationals to come to the U.S. and invest a substantial amount of money into a U.S. commercial enterprise. Typically, the initial validity period of your E-2 status will be two years, and you have the option of extending your status in two-year increments indefinitely. This means that, unlike with H-1B and L-1 visas, there is no maximum amount of years that you can be in E-2 status. Theoretically, you could continue extending your E-2 status for as long as you want. However, you must act to secure these extensions before, not after, your E-2 status has expired.

Deadline for Filing an E-2 Extension

The process of extending your E-2 status requires you to file an I-129 Petition with U.S. Citizenship and Immigration Services (USCIS). USCIS must receive the I-129 petition before the date your E-2 status is set to expire (this is the date listed on your I-94 card). It is not sufficient that you mailed your I-129 petition before your status expired if USCIS does not receive it in time. 

For example, let’s say your E-2 status is set to expire on April 1, 2013. You file the I-129 petition on March 1, 2013, and USCIS receives it on March 15, 2013 - before your status expires. This is called “timely filing an extension.” When you timely file your extension, your status is automatically extended while USCIS makes a decision on your petition, and you are lawfully authorized to remain in the U.S. and continue your E-2 activities.

Unfortunately, some E-2 visa holders do not timely file their extension petitions. Let’s say in the example above that instead of filing your I-129 petition on March 1, 2013, you actually file it on May 1, 2013, and USCIS receives it on May 6, 2013. You have NOT timely filed your E-2 extension. 

The failure to timely file your E-2 extension petition can be a serious situation and lead to unfortunate immigration consequences.

What Happens If You Miss the Extension-Filing Deadline

If you do not timely file your E-2 extension, then once your status expires, you will be considered to be in the U.S. illegally and you will begin accruing unlawful presence. If you accrue more than 180 days but less than one year of unlawful presence, then when you next depart the U.S. you will be barred from re-entering the U.S. for three years. If you accrue more than a year of unlawful presence, when you next depart the U.S. you will be barred from reentering the U.S. for ten years.

As you can see, failing to timely file your E-2 extension petition can jeopardize your ability to come to the U.S. in the future. However, if you find yourself in this situation, all is not lost. USCIS may still approve your extension petition under U.S. immigration regulation 8 CFR 214.1(c)(4).

This gives USCIS the discretion to approve a late extension petition if the beneficiary (you) meet the following four criteria:

1. The delay in filing was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
2. The alien has not otherwise violated his or her nonimmigrant status;
3. The alien remains a bona fide nonimmigrant; and
4. The alien is not the subject of deportation or removal proceedings.

Typically, prong number 1 is the most difficult part of this test to prove, so we'll discuss it in detail here. Prong 1 basically has two components. First, you have to demonstrate to USCIS that your delay in filing your extension was due to extraordinary circumstances beyond your control. U.S. immigration law does not define extraordinary circumstances, but as a general rule, the more outrageous the circumstances, the more likely it is that USCIS will agree that the circumstances are extraordinary. 

For example, if you tell USCIS that you did not file your extension petition on time because you did not feel well, USCIS will most likely not agree that these circumstances are extraordinary. However, if you tell USCIS that you contracted an extremely rare and life-threatening illness, and you were unconscious for weeks in the hospital and unable to file your petition, the agency is more likely to agree that these circumstances were extraordinary (please note that you will have to document your explanation with evidence of your extraordinary circumstances such as medical bills, doctors’ notes, or similar evidence).

The second part of prong number 1 requires a finding by USCIS that the delay is commensurate with the extraordinary circumstances. This basically means that USCIS must find that your circumstances truly did prevent you from timely filing the petition and that you are not simply trying to take advantage of this exception.

For example, let’s say you tell USCIS that you could did not timely file your petition because you were in the hospital. Although you may have been very sick, if you were conscious and able to move, talk, and perform other activities, USCIS will probably not find that the delay was commensurate with your circumstances. On the other hand, as in the example above, if you were unconscious then you literally could not file your petition. In that scenario, USCIS is more likely to find that the delay was commensurate with your circumstances.

Please note that whatever you tell USCIS must be true and accurate. You should never misrepresent or make false statements to USCIS in order to gain immigration benefits.

What Happens If a Late Extension Petition Is Denied?

Unfortunately, even if you tell USCIS that extraordinary circumstances prevented you from timely filing your extension petition, it is possible USCIS may still deny your request. 

If USCIS denies your petition, you should make plans to leave the U.S. as soon as possible. As previously stated, you began accruing unlawful presence once your E-2 status expired, and you could become subject to a three-year or ten-year bar if you remain in the U.S. without any lawful status.