Dear Atty. Lou,
I came here in the US sometime in April 2006 using an investor E2 visa. My E2 visa stamped on my passport has an expiration date of March 2011. I was sponsored by my first agency and they assisted me in obtaining this E2 visa.
While on an E2 visa, a second agency sponsored me for an H1B visa that took effect on Oct 1, 2009. This agency changed my status from E2 to H1B. Sad to say, the second agency could not find me a job and the result is that I am looking for a job by myself.
Can I take back my E2 visa because the H1B visa petitioner could not provide me job? Is it allowed to have dual US visa? If H1B overrides the E2 visa, how long am I allowed to look for a job here in US?
Thanks,
Troubled Guy
Dear Troubled Guy,
The E2 investor visa is issued to individuals to solely develop and direct the operations of an investment enterprise in the US. When you were issued the E2 visa I assume that you actually operated a business enterprise in the US based on the representation you made before the consular officer at the time you obtained your E2 visa. It is either you were the principal investor or an essential employee of an E2 visa holder. Either way, it is expected that you used your E2 visa based on your prior E2 application in 2006.
When you changed your status to H1B on October 1, 2009, your US citizen petitioner should have an existing job offer for you so you may legally work as a professional. When it was approved, it means that the US Citizenship and Immigration Services is convinced that you meet all the eligibility requirements to work including the fact that the terms and conditions of your work. Now that you have an approved H1B visa, you are supposed to be working with your US petitioner or employer. If you are looking for another employer, your H1B visa must still remain valid for you to be able to change to another employer.
You mentioned that your employer is unable to find a job for you. This is unusual considering that your employer represented to the US Citizenship and Immigration Services that there is a valid job offer for you. They remain responsible as your employer. If there is really no job, this employer may amend the petition or withdraw the petition for H1B visa Unfortunately, if they do that, you will be left without a legal status.
Since you already changed your visa to an H1B from an E2 visa, you may not now turn around and say that you want your E2 visa back unless you follow the appropriate change of status process. In changing your status back to an E2 visa, you have to prove your case again and show your eligibility to stay in the US on an E2 visa. This means proving that there is an investment enterprise to operate or you are essential employee of an investment enterprise owner also on E2 visa.
There are circumstances of dual nonimmigrant visas on the passport stamp where the visas are not inconsistent with the issuance. However, the Department of Homeland Security will not permit dual nonimmigrant visas upon entry into the US. Only the visa that is consistent with your intended activity will be issued to you. In your case, being an H1B visa and E2 visa holder at the same time is not legally possible.
Again, if you wish to change status back to E2, you should do so by proving your eligibility to receive an E2 nonimmigrant visa.
Thank you and I hope that this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
