Immigration Law Article

VP Immigration > Blog > E2 Visas
Can I work under ESTA? The Visa Waiver Program

Requirements for the E-2 Visa: Common Issues and Grounds for Denial

Posted: October 28, 2021

 

The application of the requirement for a "substantial" investment can vary widely between consular officers and United States Immigration Service (USCIS) immigration officers. The regulations do not impose a minimum investment, but it is important to note that the amount of the investment must be commensurate with the cost and nature of the business involved, and sufficient to ensure that it thrives. Most businesses that fail, fail because they are undercapitalized.

When evaluating whether the investment is substantial, the immigration officer will look to the amount of money required to make sure that your financial commitment will be sufficient to bring the company to success. Usually, they want to see that 100% of the purchase price is paid.  The officer will also take a close look at how you have spent your investment funds, such as prepayment of rent on your business premises, contracts you have entered and paid such as for marketing services, inventory, the purchase of materials and equipment, etc.

If the cost of an established business is less than $100,000, the investment should be as close as possible to 100% of that amount invested or committed. On the other hand, a highly expensive business would require a lower percentage of qualifying investment. There are no bright line percentages that exist for an investment to be considered substantial. However, also consider that the business cannot be marginal. It is considered marginal if it cannot provide jobs to US workers. If you are buying an existing business for less than $50,000.00 it likely does not financially support anyone but the owner. Nonetheless, our firm has successfully assisted E2 visa applicants whose investment was $50,000 or less on occasion. Generally, these will be service-oriented businesses that don’t need expensive equipment or inventory.

What are some common grounds for E2 visa denials?

  1. Investment not substantial - investing an insufficient amount for the viability of the business. Though no minimum investment amount is indicated in the law, immigration lawyers generally recommend a minimum average investment of $75,000 to $100,000 for the most common cases. This range can be further increased depending on the nature of the business. The consular officer will apply a rule of proportionality of the initial investment to the overall investment.

  2. Investment is Marginal- Indicating a projected turnover barely sufficient to support the business operations. Your investment is meant to generate profits, to contribute to the payment of taxes, and to provide jobs for U.S. workers, and it is from this perspective that you are granted a visa. In essence, that is what a "non-marginal investment" means, as it is referred to in the law. If your business barely generates enough to support you and your family, it won’t be expected to benefit the U.S. economy.

  3. Business is not active- Hoping for the visa to be granted before starting to invest and hire. Your application should demonstrate that your business is close to operational. Though the Foreign Affairs Manual states it can be close to the start of business, that is misleading since some consulates may not grant you an E-2 visa until the business is operational. Your application should be documented with some of the following documentation: evidence of U.S. workers, supplier invoices, your commercial lease contract, work contracts, or letters of intent from prospective customers. Your investment must be committed. You must demonstrate that the risk of investing is assumed. After reading your business plan, the consular officer must be convinced that the issuance of this visa will have a real and rapid economic impact. The amount of money already committed must reflect your ability to step into your position to direct and develop your investment.

  4. Business Acumen - You must own at least 50% of the company, and your business plan must show that you are the person who makes strategic decisions. Your understanding and your ability to speak basic English will be a consideration. Some activities require a license to be carried out.  The official evaluating your case may wonder how long it will take to acquire it and will someone else in the business already have the required license.

  5. Lack of preparation for the visa interview - This is when the adventure begins... or not. This exchange takes place in English and in a setting that can be intimidating. Make sure you are familiar with your file and most importantly with the business plan which was submitted in support of your application which you may not have prepared yourself.

 

Frequently Asked Questions

This means that you may not have enough experience or background to convince the consular officer that you can effectively manage the business. Your lack of proficiency in the English language or your minimum educational level can also be part of the reasons for this negative outcome.

Yes. The consulates have, thus far, requested that the applicants who were denied on this basis resubmit the application and visa fees, which will lead to another visa interview.

This means that your case is pending administrative processing, during which the officer is either waiting for additional documentation from you or must conduct some background checks on your case before a decision can be made. This can relate to missing documentation, missing information from you or from another agency or authority, or background checks. Once the proper documents or information are received, a decision can then be issued.

It may be possible to apply for a US visa in a country other than the country from which you obtained your passport or your country of residence; this is known as “applying as a “third country national”  (TCN). Most consulates accept applications from third country nationals, but not all. During the pandemic, very few processed TCN applications. You should check the website of the consulate embassy where you want to apply for the visa to see if applications from "third country nationals" are accepted under their policies.  The foreign affairs manuals indicates that you should be present in the consular jurisdiction where you apply.  Applying for a visa in a country other than yours involves risks. Since the E2 visa is a non-immigrant visa, the consular officer will need to determine whether you plan to immigrate to the United States and assess the likelihood of your return to your home country once your authorization to remain in the United States ends. Officials in other countries may not be familiar with your country of citizenship and may not feel comfortable making this decision.

The issuance of your E-2 visa will not be contingent on showing proof of vaccination. However, as of November 8, 2021, you will be required, as a general rule, to show proof of an acceptable COVID-19 vaccination or satisfy the airline if you fly to the US and/or customs and border officer that you fall within one of the exceptions listed in the October 25, 2021, presidential proclamation. https://www.cdc.gov/quarantine/cruise/pdf/Vax-Order-10-25-21-p.pdf

 

 

We frequently receive questions about the E2 visa, its requirements, and the E2 visa process. In an effort to help you obtain as much information needed as possible, we have compiled those that we think are the most common ones, so please feel free to visit our E2 Visa frequently asked questions page to find more information on this subject.

Vazquez & Poudat Immigration Law Firm and E2 Visa Applications

Contact our Immigration Board Certified Attorneys (Admitted and Accredited by the Florida Bar) to prepare your E2 visa application and ensure that the information required under the statutory criteria for a successful E2 application is met. Call us today at 407.674.6968, or fill out our online form and we will contact you as soon as possible.

COVID-19 UPDATE
407.674.6968

Your Future Is Our Mission