E-2 visa when denied B1/B2 visa

[gmang79]

My parents have been to the US several times in the last few years on B1/B2 visa. During the last few times they have been granted 1 year visa. A couple of their visits have been short 1-2 months while their last visits have been about 5 months. Their age are 64 (father) and 57 (mother). Their visits in the US are as below. Never overstayed, never more than 180 days over a 1 year (365 day period)

Apr 2005 - 6 weeks (B1/B2)
Dec 2005 - 2 months (B1/B2)
Dec 2006 - May 2007 - 5 Months (B1/B2)
Oct 2009 - Apr 2010 - 5 months (B1/B2)

In Dec 2010 as well as in May 2011 they were denied a B1/B2 visa to attend my brothers's MBA graduation. What's even stranger is that my father's visa application was denied again in June 2011 when he applied by himself to attend my brother's graduation leaving my mother behind. They have no other children at home and no grandparents. Both my brother and I are here and have been here for about 12 years. I am on AOS (Pending I-485) while my brother is on F1 (OPT). His company is doing his Greencard application as well.

My parents now would like to come to the US and buy an existing business (deli/restaurant) and use their savings about 150K as an investments under E-2 category.

Have 2 questions regarding:

7. The applicant is in a position to "develop and direct" the enterprise (9 FAM 41.51 N12) - Here is where I have questions as my parents have never ran a restaurant, but my father has ran his own business in the past (he's an engineer) but my mother has a passion for cooking and we will be using some of her recipes at the restaurant. Question: How do we fulfill this requirement? Both parents have college degrees so theoretically both/any of them should be able to develop and direct a restaurant/deli.

9. The applicant intends to depart the United States when the E-2 status terminates (9 FAM 41.51 N15) - How to address this requirement is the question? They have been rejected B1/B2 visa. They have properties back home, indeed have 2 homes and a commercial property (the consul did not care about this when denied B1/B2 visa).


To qualify for an E-2 Visa one must prove that:

1. The requisite treaty exists (9 FAM 41.51 N3) - It does for my parents.
2. The individual and/or business possesses the nationality of the treaty country (9 FAM 41.51 N2, N14.1) - It does.
3. The applicant has invested or is in the process of investing (9 FAM 41.51 N8) - We will prove that. We will transfer money to an escrow account before buying an operational business.
4. The enterprise is a real and operating commercial enterprise (9 FAM 41.51 N9) - The business has US employees and turns a profit.
5. The applicant's investment is substantial (9 FAM 41.51 N10) - The investment is substantial. $150K and jobs for US citizens are created.
6. The investment is more than a marginal one solely for earning a living (9 FAM 41.51 N11) - The business will generate enough profit to demonstrate more profit than average income earnings in the State of MA. We can prove it's not marginal and have business plan.
7. The applicant is in a position to "develop and direct" the enterprise (9 FAM 41.51 N12) - Here is where I have questions as my parents have never ran a restaurant, but my father has ran his own business in the past (he's an engineer) but my mother has a passion for cooking and we will be using some of her recipes at the restaurant. Question: How do we fulfill this requirement? Both parents have college degrees so theoretically both of them should be able to develop and direct a restaurant.
8. The applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United States (9 FAM 41.51 N14) - Not applicable to my parents.
9. The applicant intends to depart the United States when the E-2 status terminates (9 FAM 41.51 N15) - How to address this requirement is the question? They have been rejected B1/B2 visa. They have properties back home, indeed have 2 homes and a commercial property (the consul did not care about this).

Has anyone been in this position? Is it even possible to get them on E-2 visa? A consul may view this as my parents have 150K and they are buying their way into the US? What arguments can be used to address issue 7 and 9 and how important are they as part of the E-2 Visa application?

Appreciate all your responses.

Thanks!

 

[yellow211]

Firstly, your parents should hire an immigration attorney to apply for them. There are plenty to choose from. The E2 application is much more involved than a simple B1/B2 and I wouldnt recommend doing it yourselves. Look at spending around $2500.00 or more for a retainer every time you need to reapply. Shouldnt be a problem for any person serious about buying a business in the US.


Now, question 1)

In order to 'develop and direct' the business, the applicant must simply show that they will be the ones operating the business on a day to day basis. The USCIS and Dept of Homeland security will certainly be interested in their backgrounds but at the end of the day, it wont matter much if they can prove they own all bank accounts, the property, licenses, taxes etc that the business will need and use. Basically, the USCIS does NOT want people investing in companies and then hiring out managers or whatever to run the business. They want the applicants involved. So, if your parents truly intend to run the business themselves and train and manage their employees, this wont be an issue

2) The intent to depart. This is simple. The applicants must sign an "Intent to Depart letter". Your attorney will do one for you and have you sign it. In the letter, it will state that they have intent to leave the US once their interest in the business is done. If they sell it, stop working for it, the business goes bankrupt, they retire.....they have to leave. In order to stay, they must also be involved in the company. This is one of the downsides of the E2. You could live here for 40 years and then, when you retire, you have to depart. Anyway, its a simple letter they have to sign, thats it.

Only one of them need apply but I advise that both of them make the application. Otherwise, if your father applies and mother doesnt, she will have to apply for an EAD seperately (if she wants to work) every couple of years when her I94 card is about to expire. An EAD would then allow her to work for anyone willing to hire her.
Also, their status (if they get it) here will not allow children over 21 to live in the US, so dont let your seperate GC or visa applications expire or you and your siblings will be out of status.

There are no 'arguments' needed to get around the laws you have mentioned. They either comply to both or they wont be issued an E2. And yes, the E2 is sort of buying your way in although it is full of pitfalls unlike entry through GC. They need to be renewed every 3 to 5 years, forever. No adult childred (over 21) can enter with the E2 holders. You must always have a hand in the business you own. These 'rules' are in place to ensure that an applicant is legitimate and not just owning a company but RUNNING it.

The E2 applicant is encouraged to keep residences in their native country as their stay here is considered temporary. There are some customs officers that have refered to my house in the US as 'my temporary place of residence'. Dont let that deter your parents. The E2 can be renewed indefinitely if the criteria is correct. I would worry much more about the viability of the company they are buying rather than the application itself. A good accountant is also a very valuable tool.

The B visa denials should have no bearing on the E2 application. There is a limit to B visas, no one can stay here forever on them

I am on 3rd time E2 renewal and currently reside and work in the US, if that helps.

 

[bentlebee]

I agree for the most with the previous poster but perhaps it various from Coutnry to Country but the E2 visa holders that I know very well live here 365 days a year for years and don't have a residence in their Native Country anymore but either a family address which was more than enough.

Even with less money an E2 visa will be granted depending which Country you are from since England and a few other Countries are more difficult to obtain the visa then if you come from a different Country and also depending on what kind of business is involved.

A restaurant might be harder since so many went out of business even big franchise names. It is harder when you start a business from the ground up then when you take over a business with good P&L's and proof that more employees or independent contractors are making their living through the business.

If only will be husband and wife making a modest amount then you can forget about it.

Not having worked in the field that you want to buy the business in doesn't matter as long as the business plan looks good and applying for the first time really requires an experienced lawyer, or the chance of a denial is big and than it will be hard to ever get an E2 visa.

I never met any E2 visa holder who applied for the first time without a lawyer...some have renewed on their own and very successful.

depending on where your parents native Country is, I believe they will get approved if they show a good business plan.