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Old 08-11-2011, 11:09 PM
Member
Priority Date
:
Feb-06
Category
:
EB3
I140 Mailed Date
:
01/02/2006
Chargeability
:
Albania
Processing Stage
:
I-485
I485 Mailed Date
:
08/20/2007
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Join Date: Apr 2006
Posts: 93
gman is on a distinguished road
Default E-2 visa when denied B1/B2 visa

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!
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