The E-2 Treaty Investor Visa allows nationals of certain countries to invest in and operate a business in the United States. However, applications can be refused under Section 214(b) of the Immigration and Nationality Act (INA) if the applicant fails to meet specific requirements. This blog explains the nine key criteria for an E-2 visa and how a refusal under Section 214(b) may occur.
Contents
- What is Section 214(b)?
- The 9 Criteria for an E-2 Visa
- Treaty of Commerce and Navigation
- Nationality of the Applicant and Enterprise
- Real and Operating Commercial Enterprise
- Active Investment Requirement
- Substantial Investment
- Beyond a Marginal Enterprise
- Ability to Develop and Direct
- Employee Qualifications (if applicable)
- Intent to Depart the United States
- Common Reasons for E-2 Visa Refusals
- Steps After a Section 214(b) Refusal
- Tips for Strengthening Your Application
1. What is Section 214(b)?
Section 214(b) of the INA empowers U.S. consular officers to deny nonimmigrant visa applications when applicants fail to meet the visa classification’s requirements. For E-2 visas, this means an applicant must demonstrate compliance with all criteria. Importantly, decisions under Section 214(b) cannot be appealed, but applicants may reapply with additional evidence.
2. The 9 Criteria for an E-2 Visa
1. Treaty of Commerce and Navigation
To qualify for an E-2 visa, there must be a valid treaty of commerce and navigation between the United States and the applicant’s country of nationality. Applicants from non-treaty countries are not eligible.
2. Nationality of the Applicant and Enterprise
The investor and the business must have the same nationality as the treaty country. For example, if you are applying as a Canadian citizen, the company must also primarily belong to Canadians.
3. Real and Operating Commercial Enterprise
The business must be a legitimate and functioning enterprise that offers goods or services. Shell companies or paper businesses without active operations will not meet this criterion.
4. Active Investment Requirement
The applicant must demonstrate that they have already invested funds or are actively in the process of investing in the U.S. business. Passive investments, such as money in a bank account, do not qualify.
5. Substantial Investment
The investment must be significant enough to ensure the enterprise’s success. While there is no set monetary threshold, it should reflect a substantial portion of the business’s total value and support its operations.
6. Beyond a Marginal Enterprise
The enterprise must not solely provide the investor and their family a living. It should contribute to the U.S. economy by creating jobs or generating revenue. Typically, at least three full-time jobs for U.S. workers.
7. Ability to Develop and Direct
The applicant must demonstrate the authority to develop and direct the enterprise. Typically, this involves majority ownership or a significant managerial role.
8. Employee Qualifications (if applicable)
If applying as an employee of the treaty investor, you must prove your role is either executive/supervisory or requires special skills essential to the business’s operations.
9. Intent to Depart the United States
Applicants must show they intend to leave the U.S. once their E-2 visa expires. This is often demonstrated through ties to their home country, such as property ownership or family connections.
3. Common Reasons for E-2 Visa Refusals
Refusals under Section 214(b) often result from the following issues:
- Lack of sufficient documentation to prove one or more of the nine criteria.
- Business plans that fail to meet the “real and operating” or “beyond marginal” standards.
- Inadequate proof of substantial investment or active participation in the business.
- Weak evidence of intent to return to the home country after the visa expires.
4. Steps After a Section 214(b) Refusal
If your E-2 visa application is denied, consider these steps:
- Review the Refusal Letter: Identify which criteria were not met.
- Address the Issues: Gather more substantial evidence or correct any deficiencies.
- Reapply: Submit a new application, pay the fees, and schedule another interview.
- Consult an Immigration Lawyer: An experienced immigration lawyer can advise you on the strength of your case.
5. Tips for Strengthening Your Application
- Detailed Documentation: Provide clear evidence for each criterion, such as contracts, business licenses, and proof of investment.
- Comprehensive Business Plan: Include detailed financial projections, hiring plans, and market research.
- Evidence of Substantial Investment: Submit bank statements, receipts, and other records showing the funds invested.
- Ties to Home Country: Prepare documents proving your intent to return, such as family commitments or ongoing business interests abroad.
- Legal Guidance: Work with an immigration attorney to ensure your application meets all requirements.
Conclusion
Applying for an E-2 visa requires careful preparation to meet the U.S. government’s expectations. If you’ve been denied under Section 214(b), understand why and improve your case before reapplying. For personalized assistance, consult a qualified immigration attorney.
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