For foreign investors, the E-2 visa is one of the best ways to work in the U.S. through your investment. However, due to the complicated nature of immigration law, obstacles can always arise. If you have had your E-2 visa denied or are looking to prevent a denial, then here are some common reasons why it happens and how you can avoid it.
Note: This post reflects information that goes into effect on October 2, 2020.
How the E-2 Visa Works
There are several benefits to be enjoyed by qualified investors who manage to obtain an E-2 visa. It’s non-competitive, has a relatively short processing time, and can be extended indefinitely under the right circumstances.
However, to reap these benefits, there are specific rules that must be fulfilled in order to be eligible. First, you must be an investor from a country that holds a treaty of commerce and navigation with the U.S. You do not necessarily need to be currently living there, but you must be a national of one of these countries.
Second, you need to invest a substantial amount into a U.S. enterprise. This applies whether you are purchasing an existing business or starting a new one. The investment amount is not specified, but the general rule of thumb is to invest a greater percentage in smaller companies than in larger ones.
Third, the enterprise must not be marginal, meaning that it must be able to support you and your family now or at some point in the future.
Fourth, you must be coming to the U.S. with the sole purpose of developing this enterprise. You can demonstrate this by showing that you hold 50% ownership in the enterprise.
With these requirements in mind, we can take a look at some of the common reasons why the USCIS may deny your E-2 visa.
E-2 Visa Denied: Top Reasons
If you have already had your E-2 visa denied, then the USCIS has enclosed the details and reasons for your denial in the letter they sent you. If you are in the process of petitioning for an E-2, here are a few of the top reasons why you may receive a denial.
1. Your Investment is not Substantial
Unfortunately, because the USCIS does not numerically define what a substantial investment is, it can be very difficult to gain approval without the help of an immigration attorney. The official website gives these remarks about the investment:
- It must be substantial compared to the value of the enterprise or the cost of starting it.
- The investment must demonstrate that you are committed to the enterprise’s success.
- It should also be enough so that it is apparent that you are likely to successfully advance the enterprise.
As previously stated, if the enterprise is small, then the invested amount must be a greater percentage of its value.
For example, if Hans wants to invest in a convenience store worth $150,000, he may need to invest almost all of that amount in order to qualify. However, if he is interested in investing in a restaurant chain worth $3 million, the required percentage would be lower.
In the end, the only way to know for sure is through experience. The best way to access this experience is to work alongside an immigration attorney who has extensive experience filing E-2 petitions.
2. The Enterprise Is Marginal
The USCIS will look at the enterprise itself to determine whether or not it holds the potential to create an income for you and your family. If it is not currently capable of this, then the USCIS will judge the future of the enterprise. If it does not seem feasible that the enterprise will reach that level within 5 years of your E-2 visa approval, your petition will likely be denied.
3. Your Investment is Not Irrevocably Invested
Generally, the USCIS will be interested in making sure that you are not taking advantage of the immigration system. If your funds are easily retrievable so that you could recover them upon entering the U.S., then the USCIS may view the investment as fraudulent.
To avoid this, you should have already invested a significant amount or bought resources such as inventory or rented the physical premises. In the end, your funds must be considered “at risk” in the commercial sense.
4. You Do Not Own 50% of the Enterprise
The best way to show that you are committed to the successful development of the enterprise is by having at least 50% ownership in the business. In lieu of this, according to the USCIS, you can also have “operational control through a managerial position or other corporate device.”
5. The Enterprise is Not Bona Fide
Again, the USCIS is interested in making sure that no one takes advantage of the system. If the enterprise does not appear to be a legitimate entity engaged in the trade of goods and/or services under the local law, then you will likely have your E-2 visa denied.
6. You Did Not Demonstrate Strong Ties to Your Home Country
Unfortunately, unlike the H-1B and O-1 visas, the E-2 is not considered “dual intent” by the USCIS. This means that you cannot have an intent to immigrate permanently to the U.S. and that you intend to leave as soon as the work on your E-2 enterprise is completed.
Proving this intention is done by demonstrating that you have strong ties to your home country either through personal interests (family, work) or by maintaining a permanent residence in your home country. This shows the consular officer that you have a reason to return to your country rather than stay in the U.S.
This is a common reason that the USCIS uses to have your E-2 visa denied. To avoid this, make it abundantly clear that you do not intend to stay in the U.S. after the work on your enterprise is completed.
7. You Do Not Have a Supervisory Position
This requirement is specifically for the employees of E-2 treaty investors. Since an employee would apply to receive an E-2 as well, they are also vulnerable to having their E-2 visa denied.
According to the regulations, the employee of an E-2 treaty investor must meet the following requirements:
- You must be from the same treaty country as the investor
- You must be considered an “employee” under the law of the state in which you will be working.
- Your position must be executive or supervisory. In lieu of this, you must at least have special qualifications that warrant your presence in the U.S.
It is this last requirement that seems to be the issue most often. Executive and supervisory positions should involve having control over the overall function of the company as a whole or a large part of it. Having special qualifications means that you are essential to the successful operation of the enterprise.
What Are My Options?
While having your E-2 visa denied can be a major setback in your immigration plans, there are a few options you can take once you receive that denial letter.
If you believe that the adjudicating officer’s decision was incorrect and you did not go through consular processing, then it may be possible to appeal the decision to a third party called the Administrative Appeals Office (AAO).
While this may seem like a second chance, the AAO has a long history of upholding the decisions of the adjudicating officers. A very small percentage of decisions are overturned or even remanded.
However, if you went through consular processing, your denial letter will most likely state that the consulate decision cannot be appealed. The letter will also encourage you to take this next step in response to your denial.
While appealing may not be a viable option, you can always reapply for your E-2 visa. This will require you to file another I-129E petition and make another appointment with the consulate in your home country.
Because the E-2 visa denial letter will tell you why your visa was denied, you will have the opportunity to rectify any issues and reapply once you have made significant changes to your circumstances.
If you had your E-2 visa denied through an administrative processing refusal under section 221(g) of the Immigration and Nationality Act, you may still have hope. This kind of refusal is not a complete denial, but rather more of a request for evidence. These are typically issued due to these reasons:
- The documents or information were insufficient
- The officer needs to re-examine the case more closely
- You need to go through more background checks
The consulate will present you with a list of documents or information that needs to be submitted in order to avoid a denial. Think of this refusal as a buffer step before outright denial. Be sure to work with your immigration attorney to take advantage of this step within the given time frame.
Consider the Alternatives
Aside from reapplying, you may want to take a look at some other common pathways to work in the U.S. Work with your immigration attorney to learn if these or any other alternatives would be appropriate for your situation.
This visa requires that you have a job offer for a specialty position from a U.S. employer. The main benefit of this visa is that it is a dual intent visa that allows holders to maintain an intent to immigrate to the U.S. through a green card.
If getting a green card is your goal, you may want to consider bypassing the nonimmigrant visa step altogether. With an EB-5 green card, your investment can allow you to live permanently in the U.S. This investment program, however, does have quantified investment requirements. If you are investing in a rural area or one of high unemployment, you need to invest at least $500,000. For all other cases, the investment amount must be $1 million.
Why Was My Extension Denied?
If you have had your E-2 extension denied, chances are that you were unable to maintain one of the above requirements. For the most part, the USCIS denies E-2 extensions if they deem that the enterprise has become marginal. You must not only prove that your enterprise has the potential to succeed, but you must also make it succeed in order to remain in the country under E-2 status.