Red Flags in E Visa Applications.
E visas generally:
This article will cover which red flags in E visa applications one should watch our for to increase their chances of a successful case. In general, E Visa is a legal business status granted to business persons by arrangement between the U.S. and participating E visa countries for bilateral trade and job growth within the U.S. The treaty has 2 main streams with a common goal. The first is to carry on substantial trade in goods, services, and technology between the U.S. and the country of which the visa holder is a national. The second allows the visa holder to direct operations of an enterprise in which they have a substantial amount of capital invested. Both have the common goal of creating economic and job growth within the U.S. In recent years, it has become more difficult to be approved for an E visa. This is the result of the executive order by the current administration of “Buy American, Hire American” (BAHA). This requires Consul Officers to apply a narrower definition to the E visa qualifications of every applicant. Therefore, it’s important to understand what some of the red flags in e visa applications are and try to avoid them.
Some of the criteria for an E visa qualification are:
- The nationality of the applicant is carefully considered and applied to the correct visa status. (This is separate from where the business is incorporated).
- Lawful permanent residents are not qualified for an E visa status.
- Person is entering the U.S. (for an indefinite time) must show intent to depart theS.
- E1 visa – to carry out substantial trade between the U.S. and the country of the visa holder.
- E2 visa – to develop and direct operations of an enterprise in which the visa holder has substantial capital investment or will be investing substantial capital.
- A key employee whose services are essential to the efficient operation of an enterprise.
- A professional and solid business plan.
Red Flags in E visa applications:
The current administration requires that there be a stricter application to the rules for granting E visas. The applicant must now show a credible and proven level of specialized knowledge, managerial expertise, or significant investment and trade. According to the American Immigration Lawyers Association (AILA), there has not been a significant increase in applicant denials between 2013 and 2017. In that time period denial rates rose between 3-5%, however, the number of applicants increased significantly over that same time period. Applicants need to be aware that there are “red flags” that adjudicators look for. Consular officers are looking closer at applications for inaccuracies, discrepancies, or any manipulation of the facts to fit the applicant into the criteria. Following are some of the more common Red Flags in E visa applications to be aware of:
Overly complicated company structures
- Consul Officers have a sophisticated understanding of complex business structures. However, they have a limited amount of time to analyze each individual case. Consuls are aware that it is impossible to identify every type of business structure on an E visa application. But they will look closer at applications which may seem to be creative with the use of business laws. In your application, ownership and control should be clearly defined and the structure should be able to be defined in one or two paragraphs.
Show money trails and fiscal arrangements clearly
- The applicant should clearly demonstrate that they are the investor and are the person at risk. The funds should be committed to the enterprise and not be obscure in their link to the investor.
- Escrow arrangements should be straightforward and transparent. Escrow funds are considered “at risk” when they are moved out of escrow once the visa has been approved. The application must clearly state this contingency, and the contingencies should be clear and simple. For example: the money in escrow is clearly shown to be used for purchasing the real estate. The consul will determine if the financial arrangement is sensible or too complicated.
- Similarly, the investor should clearly demonstrate that the money for investment is clearly their own and can show a trail of ownership. Consuls are aware that some money can be obtained through inheritance or gifts. The investor then needs to clearly show the money is for investment purposes. The purpose is for consul to clearly determine who the owner of the enterprise will be.
Investments should be substantial
- There is no minimum amount requirement for investment purposes. Instead, the consuls will look at the percentage of the investment amount. For instance, a $50,000 investment for a business valued at $150,000 would be considered substantial. The same $50,000 for a business valued at $500,000 might not be enough to convince consul for visa purposes. Proof of comparable investments in similar businesses and providing expert opinion letters to support the investment amount would be helpful to the application.
- Smaller investors will have a harder time proving the long term viability of their business venture. Also, they will need to prove that it meets the visa category objective, which is to increase capital investment and grow jobs within the U.S. Small investors will need to show a clear and viable growth potential for their application to be approved.
Jobs need to be created
- The E visa category is meant to establish job growth in the U.S. for U.S. citizens. An application that seeks to bring in foreign national to operate the business, or doesn’t account for job growth will likely be denied.
- An application which shows an enterprise with an actual building, signage, and offices that are more likely to hire U.S. citizens for work have higher chance of approval. A virtual office proposal will have a harder time proving that job creation for U.S. citizens will occur.
E visa renewal with no changes
- Renewing the E visa requires the applicant to show that their new application is similar to their initial one. The applicant needs to demonstrate that they are meeting the objectives of their original business plan. They will need to show that any growth and income were the result of their original stated business labors. Revenue streams from different business labors other than stated on the original application will be a cause for closer scrutiny of the application.
Not enough bilateral or intangible trade
- Applicants will need to provide proof of ongoing trade of a substantial quantity. These trade agreements should be accompanied by signed contracts. Trade involving non-tangible goods will need to be clearly defined and explained. Explanations should be easily understood by the consul.
As per the BAHA executive order by the current administration, consul is interpreting the visa requirements for all visa applications more narrowly. Applicants should understand the narrow purpose of specific visas and they will need to demonstrate economic growth for the U.S. and its citizens. Above all, E visa applicants will need to provide accurately completed applications, supported by thorough documentation and a credible business plan. It is important to consider consulting with a knowledgeable immigration work visa lawyer to review your E visa qualifications, evidence, and create a strong game plan for a successful E visa application.