The E2 Visa For Undocumented Immigrants: Possible but Highly Risky - Frear Law
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It is in the US economy’s best interest to allow amazing immigrant entrepreneurs to establish and grow businesses in the United States. This post examines the question of whether it is possible for an undocumented immigrant to use an E2 visa to operate a business in the United States? In order for an undocumented immigrant to utilize an E2 visa, they would need to qualify for both the E2 visa and a non immigrant waiver. Although this route may be possible, it is dangerous, especially for those who have built a life in the US and have few remaining family members in their home country.

The E2 Visa

The E2 visa is a non immigrant visa that allows foreign nationals to come to the US to start or grow a business. The visa is initially valid for 2 years and can be extended indefinitely. Some of the requirements of the E2 Visa include the following: 1) The applicant must be a national of a country that has a treaty of commerce and friendship with the United States 2) The applicant has made an “at risk” investment into a commercial enterprise in the United States. 3) The investment must be large enough to ensure the successful operation of the commercial enterprise. In addition to showing that the investment is sufficient, the applicant must demonstrate that they do not have immigrant intent meaning that they ultimately intend to return to their home country.

The Non Immigrant Waiver

For an undocumented immigrant who is inadmissible to the US, they would need to obtain a waiver in conjunction with the E2 visa in order to achieve the goal of valid status. The standard for a non immigrant waiver is slightly different from the standard that is used for  immigrant waivers.

The benefits of the 212(d)(3) Non Immigrant Waiver

On the plus side, the non immigrant waiver does not require extreme hardship to a US citizen or lawful permanent resident, as is required for an immigrant waiver. Instead, the non immigrant waiver requires the adjudicator to consider the following factors: 1) The risk of harm to society if the applicant is admitted to the United States 2) The seriousness of the applicant’s prior immigration law or criminal law violations which caused the inadmissibility 3) The importance of the applicant’s reasons for entering the US. Another advantage of the non immigrant waiver is that it is broad and can be used to overcome almost every ground of inadmissibility listed in section 212(a) of the Immigration and Nationality Act.

The disadvantages of the 212(d)(3) Non Immigrant Waiver

The main disadvantage of the waiver is that it is in the complete discretion of the Admissibility Review Office(ARO). Therefore, every applicant for the waiver must understand that even if they qualify for the waiver, the ARO may arbitrarily deny it. If that occurs, there is no formal appeals process and the only recourse is to refile which will cost the applicant valuable time and money.

The Process of Applying for the E-2 Visa with a Non Immigrant Waiver

If the E2 visa seeker decides that it is worth the risk of being denied entry into the United States in the event of a denied waiver, then they may apply for the E2 visa and request the waiver at the time of their scheduled interview at the consulate. The consular officer will decide the issue of inadmissibility at this point but not the merits of the E2 visa. The officer will also review the waiver and if they believe that the waiver should be granted, he or she will make a favorable recommendation and forward the case to the ARO for a final determination. If the ARO decides that the waiver should be granted, then the consulate will decide if the applicant qualifies for the E2 Visa.

Reasons for the Consulate to Deny the E2 Visa

If the visa is denied, it could be for a number of different reasons, but one likely justification for a denial may be that the applicant can not demonstrate non-immigrant intent under 214(b). If the applicant cannot point to family members or addresses or assets in the home country that demonstrate the intention to return, then it may be a challenge to obtain approval for the E2 Visa.

What Happens if the E2 Visa is Approved?

If the E-2 Visa is approved, the applicant can enter the United States to run their business. The E2 non immigrant visa can be extended indefinitely upon showing that the commercial enterprise continues to meet the requirements of the E2 visa.

Conclusion

An undocumented immigrant living in the United States can consider the E2 visa along with a Non Immigrant Waiver as a strategy for operating a business and living in the US in valid status. However, this route is dangerous and should only be considered after understanding the risks and having a thorough discussion with a knowledgeable immigration attorney. 

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