What happens if my E2-Visa and I-94 expire while my I-485 is still pending?


New Member
I live with my family in the US on an E2-Visa (my own business) which is set to expire in about two years. We have moved from Canada to the US and we are all Canadian citizens. Three months ago I made an EB-5 investment (undelated to my own E2-based business) and filed for I-526. Assuming my I-526 will be approved, my next step would be to file for an Adjustment of Status (AOS). I understand that while on a AOS pending status, a person can remain in the US, and apply for employment authorization and advance parole. I understand this also applies to E-2 Visa holders. The question is whether I can stay in the US on a AOS pending status even if my E2-Visa (and I-94) expire before the AOS for conditional green card is approved? I have received conflicting advice. Some said that our status will automatically switch to I-485 pending status when our E2-Visa current status expires. On the other hand, I was also advised that we should extend the E-2 Visa until the I-526 is approved otherwise we should leave the US. The difficulty, to my understanding, is that my non-immigrant status cannot be extended once I have applied for an I-485. To add another layer of uncertainty, I understand there is a split of interpretations regarding E-2 nonimmigrant intent. The State Department (who run the consulates that issue the E-2 visas outside of the US) believe that the E-2 requires nonimmigrant intent, which is to say that they will not approve a new E-2 if you have a pending green card petition. USCIS has a different view of the issue and will allow extensions of status in E-2 if there is a pending green card petition (and this can be done while I am in the US for up to two yeas). Any advice what would be the best course of action, assuming the I-526 and I-485 are approved, are welcomed.