Client Alert: Changes to the FAM for E Visa Applicants
In May 2023, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) relating to E visas. In this client alert, we highlight 2 of the most concerning changes.
1. E-3 visas & intent to depart the U.S.
The DOS modified 9 FAM 402.9-8(G), which discusses the intent to depart requirement for E-3 visa applicants. The new language states:
“An E visa applicant is presumed to be an immigrant until the applicant establishes to your satisfaction that they are entitled to E nonimmigrant status. The standards for applying INA 214(b) described in 9 FAM 302.1-2(B) apply to E visa applicants.”
With the addition of this language, consular officers may apply INA §214(b) more often to deny E-3 visa applications because they presume the applicant is an “intending immigrant.”
Our recommendation: E-3 visa applicants should provide sufficient information/documentation to demonstrate that they have strong ties to their home country that will require them to leave the U.S. at the end of their temporary stay.
2. Spouses & children of E visa applicants
The DOS modified 9 FAM 402.9-9, which now treats spouses and children (dependents) of E visa applicants from E Treaty and non-Treaty countries differently.
Consular officers are now instructed to apply the visa reciprocity applicable to the dependent’s nationality and not that of the principal applicant’s nationality, when issuing E visas.
This is a drastic change from the DOS’ visa policy, which previously stated:
"The spouse and children of an E visa applicant receive the same visa validity and number of entries and are required to pay the same reciprocity fee, if applicable, as the principal applicant."
So, what would this look like?
Where the E-2 principal and their spouse are Italian, both applicants would receive visas valid for 60 months.
Where an E-2 principal is Italian and their spouse is Bangladeshi (Bangladesh has an E-2 Treaty), the Italian principal would receive visa for 60 months while the Bangladeshi spouse would receive a visa for 3 months.
Where an E-2 principal is Italian and their spouse is Vietnamese (Vietnam does not have an E-2 Treaty), both the Italian principal and the Vietnamese spouse would receive visas valid for 60 months.
Our recommendation: Applicants for nonimmigrant visas with dependents who have different nationalities should check the DOS’ reciprocity website to determine the length of the visas that will be issued to their dependents. It is important to know, in advance, if their dependents’ visas will be issued for a shorter validity period so that travel plans can be made.
For example, if a dependent’s visa will only be valid for 3 months, it is important to schedule additional time into international travel so that the dependent can apply for a new visa when their current one expires.
Link to FAM with changes to the E visa classifications: https://fam.state.gov/fam/09FAM/09FAM040209.html
Link to E-1/E-2 Treaty:
Countries: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
Link to DOS’ reciprocity website: https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html