Can You Appeal an E2 Visa Refusal?
E2 Visa Refusal – What should you do next?
The E2 visa offers non-US nationals from Treaty countries the opportunity to come to the US to invest in and set up business.
While there is no cap on the number of E2 visas that can be granted, the eligibility criteria remain stringent and E2 visa refusals are not uncommon. We are also finding that under the Trump administration, US visa applications are facing increased scrutiny.
If your application for an E2 visa has been denied, you should consider taking legal advice to consider all of your options. The decision letter from USCIS will detail the specific grounds for refusal of your application, and these will largely determine how you can proceed, for example, appealing the original decision, reapplying for the E2 visa or exploring alternative immigration routes.
Common grounds for E2 visa refusal
Your investment is not considered to be ‘substantial’.
One of the more challenging aspects of the E2 visa application is ascertaining what level of investment would meet the ‘substantial’ requirement. Without any arbitrary or minimum threshold, it is a highly subjective test. The level must be considered ‘substantial’ in relation to the enterprise you are investing in.
Your enterprise is believed to be too marginal.
If USCIS believe that your venture will not generate enough income to support you and your family and cannot demonstrate a reasonable profit growth, they will not approve your application. The enterprise must be seen to be able to provide jobs for US workers, not just supporting the investor and their family. It must also be seen to not only be viable at start up, but that it will continue to grow and create jobs and income.
The investment is seen as too easily retrievable.
UCIS will want to make sure that you are fully invested in the venture and not likely to use the system to make money and withdraw it. They will want evidence of your investments and financial commitment in the enterprise to date, such as leases and resources already purchased.
You have not demonstrated sufficient personal risk.
While it can be permissible to source funds from a legitimate third party, your investment must demonstrate sufficient personal financial risk to you personally. To meet this requirement, we recommend at least 75% of the investment should include your personal assets.
You own less than 50% of the enterprise.
Your investment amount needs to be at least 50% of the overall investment.
USCIS do not consider that your business is legitimate. You need to be able to show that your business is operating on a legitimate basis with approved funding. The E2 visa won’t be granted unless you have already invested in the business and it is either ready to operate or already operational, e.g. premises are leased, equipment installed and you are ready to move as soon as you are approved.
You have failed to demonstrate sufficient ties to your home country.
The E2 visa is a temporary, nonimmigrant visa and cannot be used as a stepping-stone to gaining US permanent residency. You must be able to show you have commitments and interests in your own country that prove you will leave the US on visa expiry e.g. mortgage statements, lease agreements, vehicle registrations and family still in your home country.
Employees of the investor who have applied for an E2 visa must hold a supervisory position.
Individual applicants must satisfy the test for seniority of position in the US entity.
E2 visa refusal: next steps?
Your refusal letter will indicate options for you to consider as next steps, which will be largely determined by the stated grounds for refusal.
Appealing the decision
Should you believe that the adjudicating officer made the wrong decision, and providing you haven’t gone through consular processing, then you may be able to appeal through the Administrative Appeals Office. Consular Processing means that you have visited a US Embassy or Consulate in your own country to attend an interview regarding your E-2 visa application. If you have been through consular processing, then your letter of denial will more than likely state that you can’t appeal the decision.
The Administrative Appeals Office (AAO) conducts administrative reviews of appeals ensuring that there is consistency and accuracy in the implementation of immigration policy. This entails reviewing all documentation and information submitted as part of the original application. It is not possible to provide new or different supporting material for an appeal.
In practice, this means the AAO in the majority of cases upholds the decision made by the adjudicating officer.
With a small percentage having their decision overturned, it is important for applicants to take advice on whether an appeal is the most appropriate response to a refused E2 visa application.
For example, the adjudicating officer may have made a factual error in their decision making, or you may have grounds for appeal if you can show the adjudicating officer has incorrectly calculated your investment by failing to take into account all the material considerations.
To appeal the decision you will need to file the form I290B with the fee, within 30 days of the refusal of your E2 Visa. As such, you will need to act quickly from the date of receiving your refusal letter to deciding your next steps.
The AAO office usually provides initial findings within 45 days of an appeal being lodged. The appeals process as a whole should result in a final decision with six months.
Reapplying for the E2 Visa
The grounds for refusal may indicate issues with your original application that would not meet the appeals criteria but instead would need to be addressed as part of a new E2 visa application. Again, take advice to ensure that your new application resolves any issues identified in the original refused application.
To reapply, you will need to file a new I-129 petition and make an appointment at the consulate in your home country. You will also need to pay the relevant fees again.
Request for more information
Should you E-2 visa be denied through administrative processing, this will mean that more information will be required. A refusal under section 221(g) of the Immigration and Nationality Act simply means that your application may be refused completely if you cannot provide the evidence that has been requested.
You will be given a list of documents and information that are required in order to avoid a refusal.
You should aim to provide the documents to the consulate as soon as possible, providing that this time does not exceed 120 days.
Alternative visa options
The E-2 visa is not necessarily suitable for all applicants and all circumstances. Following an E2 visa refusal, you may look at alternative immigration options. For example, the EB5 visa, which is an immigrant investment visa, or the H visa classifications. Should you wish to take up permanent residence in the US, then these visa classes put you on the pathway to obtaining a Green Card (permanent residency status), once the requirements have been fulfilled.
Do you have a question about an E2 visa refusal? NNU can help!
The process of applying for an E2 visa is demanding on applicants. If you have received an E2 visa refusal letter, take legal advice on your options to either appeal, reapply or consider alternative visas that may be open to you. As specialist US immigration attorneys, we are on hand to advise and guide on your next steps. Contact us today!
This article does not constitute direct legal advice and is for informational purposes only.