E-2 Visa approved for a Singaporean national during COVID-19

221g Administrative Processing – What is it and What Can be Done

Pursuant to your non-immigrant visa (L, H-1B, E-2, O-1) interview, the consular officer will typically indicate whether they are approving or refusing/denying the visa.  But at times, officers may require additional information due to which they are unable to approve or deny the visa at the end of the interview.  In such instances, the officer will “refuse” the visa application placing it under “221g Administrative Processing,” requiring further scrutiny.  Generally, the applicant will receive a notice from the consular officer indicating that their case is undergoing administrative processing, and in some situations, listing further documents that may be needed.

There’s often confusion that a “Refused” visa status on the Department of State’s case portal means that the visa was denied. A Refused status in the context of administrative processing does not mean that the visa was denied or that the refusal is final; it means that the final decision is put on hold until necessary checks are completed.  A refusal may be overcome by providing further information and/or documents as may have been requested by the consulate.

Possible Reasons for Administrative Processing

  • Additional Background Checks – In certain situations, a consular officer will need to verify or confirm certain data.  For example, in H-1B cases, where the applicant will be deployed to an end-client worksite, common in the IT industry, the officer may need to contact the end client to verify assignment and worksite details or employer-employee relationship. 
  • Missing Documentation or Information – If any material information is missing or inaccurate, the officer will likely not make a decision and request further information or clarification as they deem fit. 
  • Criminal Background – If an applicant has a criminal record, the consular officer may need to conduct additional checks to determine their visa eligibility and further evidence such as police and court records may be needed.
  • Prior Visa denial – A prior visa denial does not necessarily hinder obtaining a visa in the same category (or a different one).  That said, if an applicant is unable to satisfactorily explain the change in circumstances from the last visa denial if applying in the same visa category, the consular officer may issue a 221g notice requesting further documentary evidence to clarify change in circumstances.  
  • Material Misrepresentation or Fraud Suspicion – Should an officer suspect fraud, for example, material inconsistencies in information provided in the petition and the applicant’s responses, the consular officer may want to perform additional checks or forward the application to their Fraud Prevention Unit for further investigation, which could involve employer site visits and interviews. 
  • Legal Question – In cases involving complex ownership corporate structures in the E-2 and L-1 visa context, an officer may want to seek guidance from higher authority or wish to review necessary departmental guidance and regulations. 
  • Petitioner Information Management Service (PIMS) – This generally happens when the underlying non-immigrant petition (filed with the United States Citizenship and Immigration Services) has not been updated at the Kentucky Service Center, which scans the duplicate into PIMS systems for consulates to access petition data.

 Timeline and What Can be Done?

There is, unfortunately, no predictable timeline to the administrative processing phase, it can take from a few weeks to several months. 

If the consulate requests specific documents or information via their letter or email, one should ensure that the requisite items are submitted promptly as per their submission instructions. 

DOS has stated that their goal is to complete administrative processing within 60 days.  It is advisable to write to the post (via email and through their online portal) regarding the status of your case if there’s no decision within this timeframe.  If you believe that the consular officer expressed concern regarding any specific point or that you were unable to answer a material question, it might help to address that particular concern or question by way of an email to the consulate.

If the case is stuck in administrative delay for  n excessive period of time, a Mandamus lawsuit could be an option, seeking a U.S. court’s order to direct the post to adjudicate the visa application.

Once the administrative processing is complete, the consulate will issue the visa or refuse/deny it.  In cases where fraud is suspected, the consulate may return the petition to the USCIS with a recommendation for revocation. 

What to Bear in Mind

Administrative processing not only prolongs visa adjudication but to an extent, adds an element of uncertainty; hence it’s important to apply well in advance and factor in such delays.  Certain factors prompting administrative delays are beyond one’s control.  That said, to minimize chances of such delays, the applicant should be prepared to answer all questions as best they can and truthfully.  If you believe there’s anything in the petition or your background that might warrant scrutiny, ensure that you have the necessary explanation and supporting evidence if any.  And very importantly, it helps greatly to understand the requirements of your visa category and be well versed with key petition documents.  As good practice, one should carry all pertinent paperwork to the interview.

D&A attorneys routinely assist and guide visa applicants in the consular processing stage.  Please feel free to contact us if you require assistance in this regard.


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


L1 Visa India

United States Sets Visa Records in India in 2023

In a recent press release, the U.S. Mission in India has stated that in 2023, the consular team in India processed more non-immigrant and immigrant visas than ever before – a record-breaking 1.4 million.  There was a 60% hike in visa applications compared to the previous year, with demands surging across all visa categories.

Employment visas remain a top priority.  Consular officers in India processed over 380,000 employment visas (L-1, H-1B, etc.) for Indians and their family members in 2023 alone. Most petition-based visa processing was consolidated in cities such as Chennai and Hyderabad to increase efficiency and maintain minimal appointment wait times.  

The U.S. stateside 2024 pilot program which has kicked off, allows certain H-1B employees to renew their visas in the U.S., further streamlining processing.

The post in Mumbai which processes immigrant visas in India eliminated a queue of over 31,000 immigrant visa cases delayed by the pandemic.  Immigrant visa applicants can now obtain an appointment within the standard, pre-pandemic appointment window.

The U.S. Mission continues to invest in the future of consular services in India and explore ways to provide more efficient and convenient services.  

Source: https://in.usembassy.gov/


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


H1-B visa India Interview

The Pilot Program to Renew H-1B Visa Applications within the U.S 

The Department of state has launched a pilot program to resume visa renewals for qualified H-1B non-immigrant visa applicants within the U.S. nearly after two decades.

The program has started from January 29, 2024, through April 1, 2024, or when all application slots are filled, whichever comes first. Under this program the department will make a maximum of 20,000 application slots available for approximately 4,000 per week for applicants whose most recent H-1B visa was issued by U.S. Mission India with an issuance date of February 1, 2021 through September 30, 2021, and for applicants whose most recent H-1B was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023.

This move will help to reduce the workload on officers at the U.S. consulate abroad and also the H1-B beneficiary could continue stay within the country while the visa is being processed. This move will surely a good start, if and when the program becomes permanent it would be a smooth renewal process.

Who are eligible for renewal within the country?

Applicants who fulfil the below criteria shall be eligible for renewal within the country

· Seek to renew an H-1B nonimmigrant visa only;

· Prior H-1B visa that is being renewed was issued by U.S. Mission India or by U.S. Mission Canada;

· Are not subject to a non-immigrant visa issuance fee also known as commonly “reciprocity fee”;

· Are eligible for a waiver of the in-person interview requirement;

· Have submitted ten fingerprints to the Department in connection with a previous visa application;

· Prior visa does not include a “clearance received” annotation;

· Do not have a visa ineligibility that would require a waiver prior to visa issuance;

· Were most recently admitted to the United States in H-1B status;

· Are currently maintaining H-1B status in the United States;

· Have an approved and unexpired H-1B petition;

· Period of authorized admission in H-1B status has not expired; and

· Intend to re-enter the United States in H-1B status after a temporary period abroad.

If the above criteria’s are met then the applicants must submit following list of documents and fees to renew the visa within the U.S.

· A DS-160 barcode sheet for a properly completed and electronically filed form DS-160, Online Non-immigrant Visa Application

· A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains at least two blank, unmarked pages for placement of a visa foil. RECOMMENDED: A passport containing the most recently issued H-1B visa if the visa is not in the current passport

· Non-refundable and non-transferable $205.00 MRV application processing fee

· One photograph not older than six months

· Copy of current Form I-797, Notice of Action

· Copy of Form I-94, Arrival-Departure Record

The department is processing only H-1B Visa and not H-4 visas under the program. However, if the program becomes permanent then maybe more non-immigrant visa category shall be added such as L-1 visas, E-2 Visa, etc.


This article has been written by Sukanya Raman, Davies & Associates, India Office.

Sukanya is an Independent Consultant working the capacity of Associate of the firm’s Bengaluru office. She earned her first undergraduate degree in Commerce from Mumbai University in 2013 and her second undergraduate degree in Law from Indian Law Society’s Law College, Pune at Savitribai Phule Pune University in 2017.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


S

Importance of Timely Extension Filings and USCIS Update 

A foreign worker on a non-immigrant visa status in the United States (such as L-1, H-1B, E-2, etc.) may be needed to stay longer and work beyond the expiry of their admitted stay that was granted at the time of entering the United States, or as per their latest I-94, in which case the filing of an extension petition may become necessary.  The foreign worker’s US employer will file the I-129 with the USCIS, requesting to extend their non-immigrant status.  Extension petitions can be filed only if the employee (beneficiary) is present in the US at the time of filing.   

USCIS will generally not grant an extension approval if the foreign workers have failed to maintain their non-immigrant status or if their status has expired before the extension petition filing date.  Even during the validity period of their granted stay in the US, an employee could fall out of status; for example, an L-1 employee could lose their status if there is a structural change in the foreign employer abroad resulting in severance of the “qualifying relationship” between the foreign and US employer, as required for L-1 purposes. 

The timing of filing the extension petition is crucial as it has implications.  A late filing of an extension request, meaning filing after the expiry of the granted stay (generally until expiry of latest I-94), can result in them falling out of status.  This can at times have dire consequences, as unlawful presence in the US beyond certain prescribed periods trigger various bars to entering the country.  Thus, it’s very important to keep a track of petition/expiry dates and ensure timely filings of extension requests to avoid undesirable situations.   

Under certain circumstances, USCIS has discretion to condone late extension filings.  These circumstances are: 

  • Delay was due to extraordinary circumstances beyond the person’s control; 
  • The length of delay was commensurate with the circumstances; 
  • The person has not otherwise violated their nonimmigrant status; 
  • The person remains a bona fide nonimmigrant; and 
  • The person is not the subject of removal proceedings and deportation proceedings. 

On January 25, 2024, USCIS updated their Policy Manual to clarify extraordinary circumstances that would allow USCIS discretion to excuse untimely extension filings.  These circumstances include situations where delay arose from a stoppage of work involving a strike, lockout, or other labor dispute; or due to inability to obtain a certified labor condition application due to a lapse in government funding supporting those adjudications. 

If USCIS approves an untimely extension petition, the approval is effective as of the date of the expiration of the prior non-immigrant admission period.  


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


Investor Visa Application Price Increase

Mastering E2 Visa Interview Questions With Expert Tips

E2 Treaty Investor Visa

An E2 Investment Visa is a nonimmigrant visa that allows nationals of E2 treaty countries to reside in the US with their families. Each E2 investor is required to make a substantial investment in a U.S. enterprise or business.

A treaty country is defined as a country that has a signed treaty with the United States or with a qualifying international agreement, or which has been deemed qualified by legislation. A list of E2 visa countries is available by following this link.

The E2 Treaty Investor Visa allows you to start a successful business in the U.S. and stay in the U.S. indefinitely. The E-2 Visa process for applying for this visa can be complex. After submitting your application and documents, you will need to arrange an appointment to attend an interview with the immigration officer in your local US consulate to answer any questions regarding your application and provide additional information should it be needed.

It is also possible to change status to E2 status from within the United States. As an applicant for change of status is already in the US E2 visa is not initially needed. Once a person and an interview can be avoided. However, upon leaving the US a person in visa status will need to obtain an E2 visa at a US consulate.

E 2 Visa Expectations

An E-2 Visa interview has a number of purposes. An E-2 investment Visa interview serves to not only to verify your identity but also to check any information the visa applicant has provided in their application and to ensure that they satisfy all the requirements of the visa. If you’re the applicant, you may be asked to provide additional information even though you have provided all documents or information needed.

The interview is usually conducted by a consular officer who will ask questions related to your visa application and your future stay in the U.S. The officer may start with a few general and simple questions before going into detail about your application.

If you fail to answer your interview questions or simply fail to attend the interview itself without any reasonable explanation, your visa may be refused. So it’s important to attend and prepare for your interview.

The key to success in an E2 visa interview is to thoroughly understand your business and the business plan.

Preparing for an E2 Visa Interview

There’s nothing wrong with overpreparing yourself for your visa interview, especially since it will determine if you’re qualified for an E2 Visa. To help you prepare for your interview, we’ve highlighted some of the things you need to do:

Lay the groundwork

There’s nothing wrong with overpreparing yourself for your visa interview. You  have to bring necessary documents such as a complete copy of your E2 visa application process and copies of your and your family members’ passports, birth certificates and marriage certificates. Where the US business is already operations we also suggest brining updated business bank account statements to the interview. The interviewing officer may also request additional documents
before your interview, so you should be ready to submit them.

As the requirements at each US consular post vary we strongly suggest that applicants speak with an immigration lawyer experienced with E2 visa interviews at your consulate. They will be able to give more detailed guidance as to documents typically required at interview.

Study ahead of time

The interview will focus on your business and relevant personal qualifications in great detail. You must therefore be able to discuss in your business including source of funds, type of business, industry, and financial and personnel projections. The consular officer will ask extremely detailed questions to see and make sure your business can contribute to the U.S. economy.

Keep a calm composure

There are times that the consular officer will appear unfriendly or rude when they ask you questions, but it’s important to note that their job is to ascertain that everything you have provided is true. Always maintain a calm and professional composure throughout your interview.

Be cordial

Appearing confident during your interview will be helpful but also being warm and friendly. Make sure not to be overly friendly as you still need to appear courteous and respectful as well.

Take you lawyer with you

While some consulates do not allow lawyers to be present at visa interviews others do. Singapore and Zurich are amongst those consulates who have allowed lawyers to attend E2 visa interviews with their clients in the past.

Required Documents for an E2 Visa Interview

There are only a few documents that you will need to show and provide during your interview. A majority of the documents should have been submitted together with your visa application to the U.S. Consulate or Embassy.

  • DS-160 confirmation;
  • A printed interview appointment confirmation
  • A copy of your current and expired passports;
  • Evidence of any previously issued U.S. visas, if any;
  • Two coloured photographs that comply with the U.S. visa photo requirements. You are allowed to wear a headdress if required by the religious order in which you are a member;
  • A copy of the fee payment receipt; and
  • Proof of your nationality or immigration status with your home country such as bank statements, leases, property deeds, etc. It’s important to take note of the active E2 countries to make sure you’re qualified.

The consular officer may ask ahead of time for additional documents that you would need to submit during your interview, so you would need to bring them as well.

E2 Visa Interview Questions and Answers

During the interview process, the immigration officer may ask you a lot of things related to you and your investment. If you’re still nervous about your upcoming interview, we’ve highlighted some of the questions that may be asked to you divided into categories:

General

Why are you going to the U.S.?

Answer the reason why you’re going to the U.S., highlighting that you’re travelling to manage and control the E2 business.

Have you visited the U.S. previously?

Answer with a definite yes or no. The immigration officer may also ask about the specifics of your previous visits if there are any.

Do you have any family members in the U.S.?

Answer with a definite yes or no.

Do you intend to settle permanently in the U.S.?

Since the E2 Visa is a nonimmigrant visa, you need to answer no to make sure that your intent to depart is proven to the officer. Since the officer may want to know if you’re going to permanently live in the U.S., you may also provide evidence of your ties to your home country such as a dependent family member.

Do you have a family in your home country?

Answer with a definite yes or no.

Do you own or lease real estate, and vehicles, or own businesses?

Answer with a definite yes or no.

What do you plan to do once your visa expires?

Answer with your plans and goals after your visa expires.

Personal

What is your current job?

Answer with your current job title in your home country.

What is your source of income?

Answer with any source of income you may have including salary, pensions, and
businesses among others.

How did you meet your business partners? (if you have)

Answer with the reason you met your business partners, including how you
started the business.

How did you get the idea for the business?

Answer how you came up with the business.

Why do you think you’ll have a successful outcome for this business?

Answer how you think your business can give you success, highlighting any
financial trajectory you have.

How will you manage the business in the U.S.?

Answer with your clear plan on how will you manage your business and your
commitment to its success. You need to prove that you will be actively
involved in the management of the E2 business.

What is your long-term plan and goals for the business

Answer with your clear goals and plans for the business, including your
long-term plan. A more detailed business plan outlines your business’
projected outcomes and strategies.

What is your experience in business management?

Answer with any experience you have in managing a business. You may also
provide a resume or curriculum vitae to outline your experience in the
relevant and particular industry of your business.

Are there business interests you are actively involved in?

Answer with a definite yes or no.

What will be your role in the company?

Since the E2 Visa allows you to control the business in the U.S., you have to
answer a role that shows you have control over the business.

Investment-related

Is your investment committed to an active U.S. business?

Answer with a definite yes or no. You can also provide evidence that your
investment is irrevocably committed to the U.S. enterprise.

What are the details and nature of your investment?

Answer with the details of your investment such as the business type,
location, and amount.

How will you finance the investment?

Answer with the legal source of your investment funds. You may also provide
evidence such as bank statements and tax returns.

How much have you invested in the business?

Answer with the clear investment amount that you have placed for your E2
business.

What enterprise are you investing in the U.S.?

Answer with the type of enterprise you have invested in the U.S.

How will the U.S. economy benefit from your investment?

Answer how your investment will create jobs and contribute to the U.S.
economy, such as your plan for job creation or economic growth.

How many people are you planning to hire?

Answer with the number of people you’re hiring for your business, including
your plan on how to pay them.

Where do you think your business will be in 5 years?

Answer with your projection for your business in 5 years. As we have said,
your investment plan or business plan can give you a clear picture of the
trajectory of your investment.

As questions can vary by consulate we suggest contacting us for a list of
questions commonly asked at your consulate.

Maximising Chances of E2 Visa Approval

The E2 Visa application process can get complicated especially with its requirements. Moreover, you have to convince and satisfy the consular officer that you meet these requirements.

An E2 visa immigration lawyer can give you expert advice on how you can maximise your chances of getting approved for the visa. They can also give you an overview of what you can expect for the interview, and a list of relevant documents you can submit depending on your circumstance to cut down the processing time of E2 Visa. Additionally, they can give you advice on what to do should problems or issues arise during your interview and application process.

Take note that you can’t risk getting your E2 visa refused as it carries financial risk to your E2 business and will make you permanently ineligible for the ESTA waiver program.. If you’re not approved, you will  need to hire another person to oversee the business operations.


US Immigration attorney

Ways to get a US Green Card

The much-coveted green card is a license to permanently live and work in the United States.  In other words, this piece of document grants the holder the status of permanent resident in the US and a path to citizenship. 

The two most common ways to obtain a green card are through family and employment. 

In general, green card immigrant visas through family-sponsored preference categories are limited to 226,000 per fiscal year (October 1 to September 30), and employment-based immigrant visas are capped at 140,000 annually.  However, these annual limits can be exceeded if certain immigrant visas from prior fiscal year’s allocation remain unutilized. 

This article provides a brief overview of the various routes through which a green card can be obtained. 

  1. Through Family: 

Immigration through family is arguably the most common path for obtaining a green card and later, citizenship.  The marriage route is the quickset.  The law allows a US citizen or a permanent resident to sponsor a family member for permanent residency (typically done by way of an I-130 filing).   

The family-based route has two immigrant visa categories: 

Immediate Relatives – these are close relatives of US citizens, such as spouses, unmarried children under 21, or parents.  This category is not subject to a fiscal quota and unlimited number of visas are always available; thus visas are processed relatively much faster under this category. 

Family Preference – this category is reserved for other relatives of US citizens and green card holders such as siblings, unmarried children over the age of 21, married children, etc., and a limited number of immigrant visas are available each year.  Processing times in most cases often range from a couple to several years. 

Separately, there’s also a path for fiancés of US citizens – K1 or the fiancé visa – which allows the fiancé to enter the US for the purpose of marriage and later, adjustment to green card status.  

  1. Through Employment:

A green card can be obtained by working with a US employer; there are different categories, and of course, different requirements.  These categories include priority workers such as outstanding professors and researchers, people with extraordinary ability and multinational manager and executives; professionals with advanced degrees; skilled workers and special immigrants.   

The five categories of employment-based immigrant visas: 

  • EB-1: Priority Workers 
  • EB-2: Professionals with Advanced Degrees or Exceptional Ability 
  • EB-3: Skilled Workers, Professionals, and Unskilled Workers 
  • EB-4: Special Immigrants 
  • EB-5: Investors 

Generally, the US employer will sponsor the green card petition.  For example, qualified H-1B employees can obtain green cards if their employer applies for their labor certification and files the I-140 petition to sponsor them, mostly under the EB-2 or EB-3 classification.  However, these particular categories have historically had long wait times.  A quick path to green card is available to certain L-1 employees – a managerial or executive can be sponsored for a green card by their US employer under the EB-1 category; in this case the employer can directly file the I-140, bypassing the labor certification process.  The wait times to obtain a green card under this route have been significantly shorter than those of the EB-2 or EB-3.

The two employment-based immigrant visa classifications which permit self-petitioning by foreign nationals are the EB-2 – National Interest Waiver, and EB-1- Extraordinary Ability.  So, if you are a musician or an athlete who’s attained national or international fame may apply for an EB-1 visa without needing a US job offer.  Similarly, a foreign national who can demonstrate that their work is of substantial intrinsic merit and national importance for the US can apply for an EB-2 visa without a US sponsor. 

  1. Through Investment:

Foreign investors can avail he EB-5 visa – an immigrant visa which allows investors to obtain a green card by investing at least $800,000 in a commercial enterprise in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA. The investment must employ at least 10 full-time US workers or remain in a pool investment project which will directly result in job creation for US workers. Over the years, the EB-5 program has resulted in the infusion of billions of dollars into the US economy, boosting development projects and employment opportunities. There are 10,000 EB-5 visas available each fiscal year. 

  1. Through Lottery:

Another way to obtain a green card is through the Diversity Visa Program or the Green Card Lottery. Under this program, 55,000 applicants are selected each year, mainly from countries with low immigration rates such as Estonia, Norway, Japan, Ukraine, etc.  The applicant needs to have a high school education, or its equivalent, or two years of qualifying work experience. 

 5.    Through Refugee/Asylee Status:

Applying for a green card by virtue of refugee or asylum status can be complex and time-consuming and requires meeting multiple criteria.  One should have been granted refugee or asylee status in order to apply, meaning that the individual should have demonstrated the fulfilment of certain requirements of a refugee or asylum seeker and have been granted protection under US law.  Refugees are generally people outside of their country who are unable or unwilling to return home because of fear of serious harm.  Asylum status is a form of protection available to people who are refugees and are seeking admission to the US at a port of entry. 

This article is for information purposes only and does not consitute legal advice of any kind.


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


US Visa Application

E2 Visa Dual Intent: Misconception or Truth?

Introduction

The United States has always been known as the land of the free and the land of opportunity. It is considered the frontrunner in the world in terms of economic growth, and that’s why a lot of people are trying to gain permanent residency in the ‘Land of the Free’.

While there are several paths to attain permanent residency, there are challenges and obstacles like long processing times, quota limitations, retrogression, among others. In this regard, it makes sense to consider nonimmigrant visa options that will allow you to enter the U.S. sooner to pursue your business or employment goals and at the same time explore options for permanent residency. The E-2 visa is one of the non-immigrant visa classification that is not subject to quota limitations, retrogression or excessively long processing times. In fact, the E-2 application does not need to be filed and approved by USCIS. The applicant files the application directly with the Embassy or Consulate.

Is E2 Visa Dual Intent: We Will Explain Why It Isn’t

There are non-immigrant visas which allow foreign nationals to be temporarily and lawfully present in the U.S. but still let them retain their right to become a legal permanent resident. However, it is a misconception to categorise an E2 visa as a dual intent visa. Generally, the U.S. Embassy or Consulate will ask treaty investors to simply sign a declaration that they plan to return to their home country once their visa expires.

Moreover, the consular officers are instructed by the Foreign Affairs Manual (FAM) that an applicant must prove that they intend to depart the U.S. once their visa expires and not to stay to adjust status or otherwise remain in the country.

Please take note that consular processing is different from filing a petition with the United States Citizenship and Immigration Services (USCIS). Due process doesn’t exist in consular processing, and petitions may be outright denied for the existence of immigrant intent. If you have an outstanding or previously approved immigrant petition, you should take note that immigrant intent is assessed when you renew or enter the U.S. and these petitions can be used as an indication of immigrant intent.

If you have a pending immigrant visa petition, the consular officer may ask you about it during your E2 interview and would consider this for the approval of your visa. They may still approve your petition, however, if you sufficiently prove that you’re not planning to adjust your status in the U.S.

What is an E-2 Visa?

An E-2 Work Visa is a type of nonimmigrant visa that allows nationals from E-2 treaty countries to make a substantial investment in a U.S. enterprise or business. The validity of the E-2 visa depends on reciprocity schedule. For most countries, the reciprocity schedule is 5 years. When one enters on a valid E-2 visa, he or she will be given a 2-year period of authorized stay. Since it is a nonimmigrant visa, the applicant must overcome the presumption of immigrant intent. He or she must demonstrate ties to the home country.

Proving Non-Immigrant Intent

All applicants for a nonimmigrant visa are presumed to intend to immigrate, which means that they must demonstrate that they do not intend to immigrate to the U.S. to get the visa. Most applicants find it hard to qualify for a non-immigrant status, such as a visitor visa, if there is any indication of intent to seek permanent residence in the U.S. 

Before a visa is issued, foreign nationals must prove to a consular officer that they meet the standards required by the visa they are applying for. The consular officers are allowed to presume that every applicant for admission intends to stay in the U.S. for a permanent time and the goal of the applicant is to overcome that presumption. The burden is on the applicant to convince the consular officer that he or she will depart once the trip has concluded or once your visa has expired. In making the decision, the consular officer will consider family, social and economic ties to the home country. 

Requirements to qualify for E-2 visa

  • You have to be a national of an E-2 treaty country to obtain an E-2 Visa.
  • You have to make an irrevocable investment.
  • Your E-2 company must be currently operational or at least imminently operational.
  • Your investment must be substantial.
  • Your E-2 company must be more than a marginal or one solely for earning a living.
  • You must be able to develop and direct the Company.
  • You must intend to depart the United States when your E-2 status terminates.

Ways to Qualify for E-2 Visa

There are different ways to qualify for E-2 Treaty Investor Visa.

Establish and operate your own start-up company.

If you are establishing your own start up company,  you need to set up the company. You can choose to set up your E-2 business as an LLC or corporation. You must own and control at least 50% of the E-2 company. You will need to take the necessary steps to make the company operational or at least imminently operational. You need to open a bank account for your company and make the necessary business expenditures (rental payments for office space, purchase of equipment, furniture or inventory, marketing fees, etc).  You must spend a significant portion of your funds on the initial business expenses and place the unspent funds in an escrow account for future business expenses of the company. To qualify for E-2 visa, you must put your funds be at risk by irrevocably committing them to the E-2 enterprise.

Buy and continue to operate an existing business.

If you are buying an existing business, you must already have a signed purchase agreement and paid the purchase price. If the seller agrees, you can opt to put the purchase price in an escrow account subject to release to the seller upon approval of your E-2 application.

Buy and operate a franchise.

If you intend to operate a franchise, you must already already signed the franchise agreement and paid the fees. If the franchisor agrees, you can also put the franchise and other related fees in an escrow account subject to release to the seller upon approval of your E-2 application.

Aside from qualifying as an E-2 Treaty Investor, you may also be eligible to be an E-2 Treaty Employee. If you know an individual (or entity) from an E-2 treaty country  and you have the same nationality, you may be classified as an E-2 Treaty Employee if you will occupy an executive, supervisory or specialized employee position.

E-2 Visa Consular Application Process

Before applying for an E-2 Visa, you need to make sure that it’s the best option for your immigration goals. You can always consult with an immigration attorney to determine if an E-2 Visa is perfect for your situation and circumstances.

Every Embassy or Consulate has their own specific guidelines in submitting an E-2 visa application. You have to make sure that you are following the guidelines to avoid potential delays. An E-2 application requires the submission of an online DS-160 application and an E-2 application package with all the supporting documentation. The Embassy or Consulate usually reviews the application before scheduling an interview. The review and processing times at every Embassy or Consulate vary. It could take 2 to 4 weeks or sometimes 2 to 4 months depending on the caseload of the Embassy or Consulate.

E-2 Visa Consular Processing Costs

  • Form DS-160 (Online Nonimmigrant Visa Application) – $315
  • Visa issuance fees or reciprocity fees depending on your home country

Our guide on the cost of E-2 visa gives you more information on the investment you must prepare to avail of an E-2 visa.

Change of Status to E-2 Process

If you are currently in the U.S. on a valid nonimmigrant visa like B-1/B-2, you may be eligible to apply to change status to E-2 by filing a petition with USCIS. You will have to demonstrate that you meet each and every requirement for E-2 classification. If approved, you will get a new I-94 with an extension of additional two years of authorized stay in the U.S. to develop and direct your E-2 company.

E-2 Change of Status Costs

  • Form I-129 (Petition for Nonimmigrant Worker) filing fee – $460
  • Form I-907 (Request for Premium Processing) filing fee – $2,500 (optional)

Is it possible to transition to become a permanent resident from E-2 status?

While the E-2 visa is a nonimmigrant visa, there are still ways to pursue permanent residency. 

  1. You may transition from E-2 to EB-5 classification when you meet the investment and employment creation requirements.
  2. You or your spouse may qualify for other employment-based immigrant petition. 
  3. You may qualify for a family-based petition as an immediate relative of a U.S. citizen.

If I have a pending immigrant petition, do I still qualify for E-2 visa?

A pending immigrant petition does not automatically disqualify you for E-2 nonimmigrant visa. You just need to prove that you have no plans of permanently immigrating at the time of the filing of your application. You have to be ready to prove your ties to your home country.

What is a dual intent doctrine in U.S. immigration law?

U.S. visas are either classified as immigrant and nonimmigrant. In general, to qualify for nonimmigrant visa, one has to prove that he or she has no intention to permanently immigrate to the U.S. However, based on the dual intent doctrine, certain nonimmigrant visa holders are allowed to be present temporarily in the U.S. with the intention of possibly immigrating to the U.S.

Types of Dual Intent Visa

As we have said, a dual intent visa allows foreign nationals to enter the U.S. as a nonimmigrant but retains the option to apply for permanent residence in the future. Some visas inherently obtain the possibility that the individual can become a permanent resident in the U.S.

H-1B Visa

The H-1B Visa is a temporary non-immigrant visa that allows a foreign national to work in a specialty occupation. A specialty occupation can include jobs in the sciences, engineering, technology, math, and medicine. Take note that an employer must go through a labor certification process before hiring a foreigner for a specific job occupation. Due to the huge demand for this visa, U.S. employers must register for a lottery unless they are considered exempt. This visa has an initial 3-year term that can be extended for a maximum of 6 years.

H-1B visa holders are eligible to bring their spouse and children below 21 to the U.S. They are also eligible to adjust status or apply for immigrant visa based on an approved petition for permanent residency for the H-1B visa holder.

L-1 Visa

The L-1 Visa is a non-immigrant visa that allows a manager or executive of a foreign company to be transferred to a parent, subsidiary, affiliate or branch in the U.S. to perform managerial or executive functions.

L-1 visa holders may be accompanied by spouse and children below 21 on L-2 visas. They are also eligible to adjust status or apply for immigrant visa at an Embassy or Consulate based on an approved employment based petition for the L-1 visa holder.

K-1 Visa

A K-1 Visa is also a dual intent visa used by a foreign fiancé who enters the U.S. and marries a U.S. citizen. K-1 Visa applicants enter the country as nonimmigrants but it is clear that they have the intent to marry a U.S. citizen and generally, immigrate to the U.S. The holder of this visa must be married within 90 days from their arrival in the U.S. They are also not allowed to work legally in the U.S., so they need to apply for a work permit or adjustment of status after their marriage to work legally.

K-2 Visa

Dual intent visas like K-2 Visa, on the other hand, allows unmarried children under the age of 21 years of K-1 Visa holders to enter the U.S. It is approved at the same time as that of their parent’s K-1 Visa, and should be submitted not later than a year after their parent’s K-1 Visa was issued.

K-3 Visa

Dual intent visas like K-3 Visa is used by the spouse of a U.S. citizen to enter the country while waiting for their pending Form I-130 (Petition for Alien Relative) filed by their U.S. citizen spouse listing them as a beneficiary. They’re allowed to work in the U.S. without securing an Employment Authorization Document (EAD).

K-4 Visa

Meanwhile, the K-4 visa enables unmarried children under the age of 21 years of a K-3 Visa holder to enter the U.S. K-4 Visa holders are eligible to apply for work in the U.S., and their visa automatically expires as soon as they turn 21 years old.

Green Card Application

Generally, the first stage in applying for permanent residence in the U.S. starts with your sponsor, such as qualifying U.S. lawful permanent residents or organizations, to file an immigrant visa petition on your behalf. If you are currently in the U.S. on a valid nonimmigrant status, you may be able to adjust status to become a permanent resident within the U.S. Otherwise, you will have to go through consular processing to obtain your visa. It should be noted that there are a lot of factors that determine your eligibility to adjust status or apply for an immigrant visa at an Embassy or Consulate. You have to make sure that you speak with a U.S. immigration attorney to be guided on the requirements and the process.


Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


UK Visa Immigration

E2 Visa for UK nationals

Are you a UK national looking to start a business in the United States? If so, you may be eligible for an E2 visa. In this article, we will discuss the E2 visa for UK nationals, its requirements, and how to apply for it.

What is an E2 Visa?

An E2 visa is a non-immigrant visa that allows foreign nationals to enter and work in the United States based on a substantial investment in a US business. This visa is only available to citizens of countries that have a treaty of commerce and navigation with the United States, and the United Kingdom is one of them.

Benefits of an E2 Visa

The E2 visa offers several benefits to UK nationals looking to start a business in the US. These include:

  • The ability to come in and out of the U.S. on the valid E-2 visa for 5 years to develop and direct your E-2 company.
  • The ability live and work in the US for a full two-year period for every entry on the valid visa, with the option to renew the visa indefinitely.
  • The ability to bring dependents, including spouses and unmarried children under 21, to the US.
  • No minimum education or language requirements.
  • No annual quota or cap on the number of E2 visas issued, which means that there is no significant wait time to obtain the E-2 visa as compared to other visa classifications.

Requirements for UK Nationals

To be eligible for an E2 visa, UK nationals must meet the following requirements:

  • Be a citizen AND an ongoing resident* of the United Kingdom
  • Have invested or be in the process of investing a substantial amount of capital in a US business
  • Have at least 50% ownership of the US business
  • Be seeking to enter the US solely to develop and direct the US business
  • The investment must be in an active and operating business, not a passive investment such as real estate or stocks
  • The investment must be at risk, meaning there is a risk of losing the investment if the business fails
  • The investment must be substantial, meaning it must be enough to ensure the success of the business
  • The business must have the potential to create job opportunities for US workers
  • The business must be a legitimate enterprise, not a marginal one

*The treaty with the UK specifically requires the principal applicant to prove ongoing residency in the U.K. Examples of the appropriate evidence which must be issued within the last 6 months maximum are a recent copy of a pay slips/stubs or proof of payment for Inland Revenue taxes in the UK. Other examples are proof ofpayment of local utilities bills such as gas, water, electric, local council taxes; a current lease or mortgage payment should be accompanied by other proof such as bank statements for a current account reflecting local direct debit charges or transactions are all acceptable proof of domicile.

Investment Amount

The investment amount required for an E2 visa varies depending on the type of business and its location. However, the investment must be substantial and sufficient to ensure the success of the business. Generally, the investment amount should be at least $100,000, but it can be lower for certain businesses. The investment can be made in a start-up company, an existing/operating company or a franchise.

Ownership Percentage

To qualify for an E2 visa, UK nationals must have at least 50% ownership of the US business. This means that they must have a controlling interest in the business and have the power to make decisions and direct the operations of the business.

Developing and Directing the Business

UK nationals must be seeking to enter the US solely to develop and direct the US business. This means that they must have a key role in the business and be actively involved in its day-to-day operations. They must also have the necessary skills and experience to successfully run the business.

Job Creation

One of the requirements for an E2 visa is that the business must have the potential to create job opportunities for US workers. While there is no specific number of jobs that must be created, the business must have the capacity to generate enough revenue to support the creation of jobs.

Marginal Enterprises

A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the investor and their family. To qualify for an E2 visa, the business must not be a marginal one.

How to Apply for an E2 Visa

To apply for an E2 visa, UK nationals must follow these steps:

1. Complete the online non-immigrant visa application (Form DS-160)

2. Pay the visa application fee

3. Gather the required documents and submit the application package based on the Embassy guidelines. Some required documents are the following:

  • A valid passport
  • A business plan outlining the investment and business operations
  • Proof of investment, such as bank statements or loan agreements
  • Proof of ownership, such as stock certificates or partnership agreements
  • Evidence of the business’s potential to create jobs, such as a business plan or financial projections
  • Evidence of the business’s legitimacy, such as business licenses or tax returns
  • Evidence of the investor’s qualifications and experience, such as resumes or educational certificates

4. Schedule an interview at the US Embassy in London

5. Attend the visa interview and answer the questions from the visa officer

6. If approved, the visa will be issued and the investor can enter the US to develop and direct the business

Conclusion

The E2 visa is an excellent option for UK nationals looking to start a business in the United States. It should be noted that you may also buy an operating business or acquire a franchise. It offers several benefits, making it accessible to a wide range of investors. By meeting the requirements and following the application process, UK nationals can successfully obtain an E2 visa and start their business in the US.


This article has been written by Alex Jovy, Head of Business Development Davies & Associates, London Office.

Alex Jovy  heads sales & business development in the UK and Europe. Alex has a long history of senior management roles in a wide range of sectors, from sustainability to film and has worked in a variety of sales, marketing and business development roles in a range of law and professional services firms. Alex has a passion for film and was nominated for an Academy Award. He is a published author with a successful historical fiction book about Cyrus the Great.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


E2 Visa Study cases

E2 Study Cases

Renewing an E-2 Treaty Investor Visa 

While the E-2 Treaty Investor visa is a non-immigrant visa, it is renewable indefinitely for as long as the business continues to operate and meet the requirements. Our E-2 client from Turkey was successful in getting his E-2 Visa renewed. He plans to re-enter the U.S. soon and further develop his enterprise.

E-2 Approvals


An E-2 Visa extension of status petition for an Australian Treaty Investor  who operates a logistics and transportation company transporting long-haul truck loads for the food industry throughout the entire continental 48 states. The beneficiary received another two years of authorized stay in the U.S. on E-2 classification. 

E-2 Treaty Investor Visa for a UK Citizen valid for 5 years

We assisted our client in acquiring 60% of an existing company in the U.S. to apply for an E-2 Treaty Investor Visa for UK Citizens. The company operates a gas station with a convenience store.

In buying an existing business to qualify for an E-2 Visa, you should check whether the company is profitable and whether it has the ability to hire more employees.

Below is an excerpt from the client’s email. 

“I am very pleased to inform you that my E2 Visa Application has been approved. I appreciate your expert advice and support throughout this process. It would be an honor to recommend Davies & Associates to all my friends and family. I really appreciate your help and support.”

E-2 Treaty investor renewal application approved for a Turkish citizen


Our client had been manufacturing and selling meerschaum pipes in Turkey. He saw the potential of selling his products in the U.S. We assisted him with his E-2 Visa application, which was approved and he was given a 5-year visa. He was able to come to the U.S. with his spouse and child to build a profitable business. Now, we just got his E-2 Visa renewed so that he can continue to expand his business in the U.S.

The U.S. has the world’s largest consumer market. If you want to bring your products or services to the U.S., feel free to contact us and we will tell you how we can help.  


Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world. 

This article has been written by Verdie J. Atienza, Esq., Senior Immigration Attorney, Head of E-2 and L-1 Visas Practice Team at Davies & Associates, New York Office.

Verdie J. Atienza is a Senior Attorney in charge of the firm’s L-1 and E-2 visa practice. He is a dual qualified lawyer in New York and in the Philippines and is qualified to practice immigration law in any state in the United States. 

 


Australian E2 visa Immigration

Renewal of E-2 Treaty Investor Visa for an Australian National 

Did you know that on December 23, 2019, the reciprocity schedule for Australia was revised for certain visa categories, including the E visa classification. For an E-1 visa or E-2 visa for Australian nonimmigrants, the fee is now USD 3,574. The U.S. visa reciprocity schedule determines each country’s visa issuance fees, the number of entries permitted on a visa, and the maximum validity period for each visa. The schedule reflects the terms imposed by other countries on American visa applicants.

Click here for more information:

https://www.usimmigrationadvisor.com/e-2-treaty-investor-visas.html

https://www.usimmigrationadvisor.com/starting-a-business-in-the-united-states-e-2-investor-visas-for.html


Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world. 

This article has been written by Verdie J. Atienza, Esq., Senior Immigration Attorney, Head of E-2 and L-1 Visas Practice Team at Davies & Associates, New York Office.

Verdie J. Atienza is a Senior Attorney in charge of the firm’s L-1 and E-2 visa practice. He is a dual qualified lawyer in New York and in the Philippines and is qualified to practice immigration law in any state in the United States.