The Orlando Sentinel reported earlier this week about a Scottish family whose applications to renew their E-2 Treaty Investor’s visas were denied by the US Embassy, London because the Consular Official who interviewed the family determined that the business they have established and managed since 2007 is no longer profitable.

The family initially came to the U.S. in 2006 to explore business opportunities.  In 2007, they bought into an ice cream franchise and were granted investors visas in 2007 based on their investment of  about $ 350,000.  

In April 2009, they submitted petitions to extend their authorized stay with the US Citizenship & Immigration Services (USCIS), and were granted an extension of their stay until April 2011.  Although the USCIS granted the extension, the family needed to travel abroad.  In doing so, they needed to make a stop at the US Embassy, London to have their passports endorsed by a Consular Official to allow them to return to the U.S. based on the two year extension.

At their interview, the Consular Official denied the family’s application for the endorsement because the corporate tax return showed a $ 30,000 loss for 2008.  

The official based the denial having cited an immigration provision that states that businesses must provide an economic benefit to the surrounding community and financially support more than just the investor and his or her immediate family.  

As a result of the denial, the primary investor and her daughter are in their home country without authorization to return to the U.S.   The dependent husband on the other hand, stayed behind in the U.S. to run the business.

The husband is now faced with the difficult decision whether to sell the business and return to his country to reunite with his family or, to continue the business and remain separated from his family.  

Our office strongly advises investors to not only comply with the terms and conditions of their visas, but to stay compliant.  Examples of continued compliance are the following:

1. Creating employment in the surrounding community;
2. Staying current with all tax reporting requirements;
3. Turning a profit; and
4. Maintaining strong ties to the home country.

In these tough economic times, the first three examples are easier said than done.  However, in order to maximize an investor’s chances of being granted a renewal of their investor’s visa at a US Embassy or Consulate abroad, is to document extensively that the business exists for the purpose of creating jobs in the local area where the business is based and most importantly, that the business is growing, expanding and not marginal for the purpose of financially supporting the investor and his or her immediate family.

The fourth example is crucial because Consular Officials want to ensure that the investor has not taken any actions such as not maintaining a residence in the investor’s home country that would lead a Consular Official to believe that that the investor is in fact, an intending immigrant.  

Consular Officials cite section 214(b) of the Immigration and Nationality Act to administer what is referred to as the Presumption of Status test. 

Pursuant to the immigration laws, every foreign national (with certain exceptions) is presumed to be an intending immmigrant until he or she establishes to the satisfaction of the Consular Official at the time of the visa application, that he or she is entitled to non-immigrant status. 

Consular Officials take into consideration the following factors to determine whether or not a foreign national is presumed to be an intending immigrant for the purposes of an investor’s visa renewal:

1. Whether an immimgrant visa petition under any basis been submitted;
2. Whether the investor has any US citizen or lawful permanent resident relatives in the U.S.;
3. Whether the investor has a documented place of abode in the home country that he or she has not abandoned; and
4. Whether the investor has maintained his or her business in the home country and, is that business open and actively trading.

Our office advises that to overcome a Consular Official’s presumption of deeming investor visa applicants as intending immigrants, is to document extensively evidence of their ongoing business and residence in their home countries.