How to Avoid an E-2 Visa Denial

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Unfortunately, despite no change in the immigration laws, visa denials are on the rise. Even the relatively straight-forward E-2 Treaty Investor Visa is being routinely denied by U.S. Consulates. Thank goodness that I have absolutely no denials that I have not been able to reverse through motions for reconsideration or appeals when the clients have been willing to fight the denial. Sometimes, however, clients themselves lose faith and don’t want to appeal, which is a mistake. Increasingly, an appeal or motion for reconsideration may be the only route.

Nevertheless, with respect to the E-2 Treaty Investor Visa, which as I mentioned is a traditionally straight forward petition, common mistakes that are still made include the following:

  • Failing to demonstrate that the treaty national invested a substantial amount of capital, which usually means approximately US$150,000 for a relatively small business;
  • Failing to show the source of the money invested, e.g., that it came from the investor’s personal savings, earnings or sale of property overseas;
  • Failing to show that the business has regular and continuous purchases of inventory and sales of product, e.g., that it is not passive such as small land development projects; and
  • Failing to show that the business is not marginal, e.g., that it is not just so that the investor can earn a living, but that there are several employees that work for the business.

The land development project perhaps is the trickiest of businesses to petition for an E-2 Treaty Investor Visa, particularly because the project will have long periods of inactivity, which could lead the consulate officer to conclude that the business is passive. Ways to get around that issue include (a) involving the business in other activities, such as general renovation of third-party properties, or (b) organizing a collateral business that has daily activity, such as a coffee shop of small restaurant or retail store.

If you have any questions regarding immigration law or the process for immigrating to the U.S., please contact Santiago J. Padilla, Esq. at (305) 824-2400 or via email.

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