The E2 visa is one of the most sought-after visas in the United States Citizenship and Immigration Services (USCIS). This nonimmigrant visa category permits that foreign investors to be admitted to the United States when investing a substantial amount of capital in a US business.
However, if the applicant does not meet the eligibility criteria or there is a mistake during the process, the application will be denied. When an E2 visa application is denied, it is time to seek legal advice and consider the available options.
What Happens if E2 Visa is Denied? – Common Reasons for E2 Visa Denial
As provided by the USCIS, the E2 visa offers foreign nationals from “treaty countries” to enter the United States upon investing a significant amount of money into a US company. While there is no pre-determined amount for investment, the eligibility criteria tend to be demanding and refusals are not uncanny.
Typically, the most common reasons for E2 visa denials include situations wherein:
- the applicant’s investment does meet the “substantial” standard
- the applicant’s enterprise does not provide jobs for US workers, supporting only the investor and their family
- the applicant’s investment is considered too “retrievable”
- the applicant has no “skin in the game” (no personal risk involved in the business)
- the applicant owns less than 50% of the proposed enterprise
- the investment amount does not equal at least 50% of the total investment
- the proposed enterprise is not considered legitimate by USCIS
- the applicant failed to demonstrate solid ties to his/her home country
When an applicant’s E2 visa is denied, he/she will receive a decision letter from USCIS detailing the specific reasons for refusal. It is crucial to have this letter assessed by an expert immigration attorney to determine the next steps – whether to appeal the decision, reapply for the E2 visa or explore other alternatives.
What Happens if E2 Visa is Denied? – Feasible Options
Appealing the USCIS Decision
Depending on the grounds outlined in the USCIS decision letter, an applicant may believe that the officer adjudicating the application made a mistake.
In such a case, provided that the applicant has not gone through consular processing, it may be possible to appeal through the Administrative Appeals Office (AAO). Applicants that have been through consular proceedings most likely receive a letter of denial without the possibility to appeal the decision.
The AAO is the department responsible for conducting administrative reviews of immigration appeals. It is crucial to note that the AAO only reviews the original application, so it is not possible to provide new supporting material for an appeal (e.g., documents, evidence, etc.).
As only a minimal percentage of appealing applicants manage to have their decision overturned, it is fundamental that denied applicants consult an expert legal advisor to determine whether an appeal is the best approach.
Reapplying with USCIS
The decision letter from USCIS will detail the issues that led to an E2 visa denial. Accordingly, it is possible to file new forms and reapply once again, ensuring that the new application meets the established criteria.
When reapplying for an E2 visa, the applicant must submit Form I-129 (Petition for Nonimmigrant Worker) again with the required fees, and then reschedule an appointment at the local US consulate.
Searching Alternative Visa Options
While the E2 visa is a great option for foreign investors who want to obtain a legal pathway to the United States, this category may not be suitable for all applicants. Depending on the case, the best approach is to sit down with an immigration attorney to search for alternative visa options.