Tag Archives: consulate

Clarifications on the Scope of “Investment” in the E-2 visa

Time and time again, I receive various queries regarding the “investment” component of the E-2 visa.   In the day and age of readily available information-overload (thanks, Google), much has been written over the years regarding the E-2 visa and its requirements, particularly about “how much” to invest in order to maximize chances of receiving the E-2 visa (or status).

While there are many different figures cited in various blogs, newsgroups, and other sites,  ranging from $25,000 to $2.5 million, there is NO OFFICIAL MINIMUM which the U.S. government dictates MUST be invested in the E-2 visa context.

In 10+ years of my immigration law practice, I can say, based on actual E-2 cases, one can say that average investments in approved cases range between $50,000 and $250,000, ordinarily.

However, it is important to stress that the appropriate level of investment varies from case to case and is reviewed by the U.S. government as such, on a “case-by-case” basis.   While an investment of $35,000, for example, could be approved in one case, it may very well be denied in another.   The same holds true for an investment of any other amount.

As prospective investor, in order to maximize one’s chances of successful E-2 visa issuance, one must remain mindful of several factors, which will be important in the government’s decision-making process:

(1) What is needed investment-wise, to get YOUR U.S. business up and running properly.
(2) the amount invested is the “correct” and adequate amount, given your unique situation.
(3) the amount invested is “sufficient” to safeguard your ongoing commitment to the success of the enterprise.
(4) the investment is potentially “subject to partial or total loss”, if business fortunes turn bad. (no financial safeguard!)
(5) the investment funds cannot be withdrawn at will, once the visa is issued, but must remain in the enterprise.
(6) based on the investment, the U.S. business enterprise will likely be profitable within the first 5 years of operation.

There are, of course, additional E-2 visa requirements, not directly relating to the investment.

The MORE you accomplish before the visa is applied for, the HIGHER the likelihood of the visa being granted.  In other words, the more of the start-up commitment and risk you take upon yourself before applying, the better your chances.

Talking Points on “DREAM Act”

THE DREAM ACT: A CENTRAL ELEMENT OF REFORM
The Development, Relief and Education of Alien Minors (DREAM) Act (S. 729/H.R. 1751) is a bipartisan bill that would provide a conditional six-year pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. if they: complete high school; demonstrate good moral character; and complete at least two years of higher education or serve for at least two years in the U.S. military. The bill also would also repeal section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) that prohibits states from providing any higher education benefit based on residency to unauthorized immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence.


THE DREAM ACT CAN STRENGTHEN THE U.S. ECONOMY

The students who would benefit under the DREAM Act have been raised and educated in the U.S. and by allowing them to pursue a higher education, we are investing in the future of our country and our economy.
•  Communities, states, and nation would reap significant benefits from the DREAM Act. A RAND study showed that a 30-year-old Mexican immigrant woman who graduated from college will pay $5,300 more in taxes and cost $3,900 less in government expenses each year than if she had dropped out of high school. This amounts to an annual fiscal benefit of over $9,000 every year, money that can be used to pay for the education of others.
•  DREAM Act beneficiaries will make up part of the educated workforce needed to help the U.S. compete in the global economy. In our globalized world, their multilingual and bicultural skills, and contributions are more important than ever to the success and global competitiveness of the United States.

CURRENT LAW PROVIDES NO WAY FOR THESE CHILDREN TO ACHIEVE LEGAL STATUS

•  Due to the undocumented status of their parents and other family members, they have no available avenues for family-based visa sponsorship.
•  Few employers would or could sponsor them for a work visa due to their age and lack of work experience. Even if an employer was willing to sponsor them, the process takes precious years that these children cannot afford to waste.

STATES SHOULD HAVE THE RIGHT TO DETERMINE WHO QUALIFIES FOR IN-STATE TUITION

•  States are required to invest in elementary and secondary education for undocumented children, but can’t collect on the return. However, when states are ready to earn a return on their investment through a highly educated workforce, they are barred from offering in-state tuition to these children. The states (and their taxpayers) have the right to earn this return.
•  States should have the authority to determine how they allocate their resources. Such an educational investment pays dividends for the states by reducing the dropout rate, leading to substantial savings in criminal justice costs and the use of public benefits, and sharply increasing the taxes paid by those benefiting from this initiative. AILA InfoNet Doc. No. 09043072. (Posted 3/19/10).

THIS BILL REFLECTS A BALANCED APPROACH TO REFORM AND MUST BE PART OF ANY COMPREHENSIVE EFFORT TO OVERHAUL OUR IMMIGRATION LAWS

•  This measure would require children to have lived in the U.S. for a number of years and to have no criminal record.
•  This measure would require eligible children to dedicate themselves to learning English and succeeding in our educational system.
•  This measure proposes a one-time only fix that would not encourage illegal immigration.

This measure recognizes that the status quo needs to be reformed by granting children the means to continue their education and legalize their status. Such reform works for children and works for America.

Visa Delay due to PIMS??? What is PIMS anyway?

Back in November 2007, the U.S. State Department (which governs all U.S. Consulates overseas, and issues U.S. visas), rolled out the “PIMS”-system. (Petition Information Management Service)

The purpose of this system was to manage information regarding petitions filed with USCIS, including scanning, archiving and data retrieval by consular officers, when adjudicating visa applications, based on previously filed USCIS-petitions.

Developed as a more secure form of verification, PIMS enhances fraud detection since the paper USCIS approval notices supplied by visa applicants were subject to fabrication and alteration. Data is entered into PIMS primarily by the State Department’s Kentucky Consular Center (KCC), which is primarily staffed though a contractor, Serco, Inc. A single performance based contract with Serco, Inc. covers both the KCC and the National Visa Center.

The results of other checks, such as fraud, criminal background, and immigration history and status (including SEVIS), may also be included in the PIMS report. A post must confirm a petition approval in PIMS before issuing a visa based on that approval.

It is NOT possible for a petitioner or beneficiary to send a petition directly to KCC for entry into PIMS, as this would circumvent the official inter-agency verification process. The petition copy for PIMS must be first sent to the USCIS Service Center which approved the petition for forwarding to the KCC.

Additionally, KCC cannot be contacted directly to verify the existence of a positive approval record before an interview.

Consular officers, during their review,  must check the Consolidated Consular Database (CCD), to verify the petition’s status in PIMS.  If the consular officer at that time cannot confirm the appropriate petition information in PIMS, the officer must contact KCC by email. At that time, KCC will research to determine if a copy has been received at their location. If not, KCC will then research the approval in USCIS’s CLAIMS3 electronic case system, and if able to confirm approval, the KCC will make the details available through the CCD.

If the approval information is in USCIS’ database, CLAIMS3, the approval information should be inserted into the CCD within 2 working days.

Previously, when the information in CLAIMS3 was incomplete, KCC would contact USCIS and request that the missing information be updated.  Now the procedure has changed because USCIS would take too long to act on behalf of KCC.   Now as long as CLAIMS3 verified approval, the KCC needs no longer wait for USCIS to update CLAIMS3 with additional details and would upload any information from CLAIMS3 into PIMS for use by posts.

Given that the PIMS record may now include incomplete information from CLAIMS3 and no copy of the petition, it is best practice for applicants to attend their visa interviews with the original petition approval notice and a full copy of the petition.  It is the responsibility of consular posts to continue to check the CCD system to determine if the PIMS record has been inserted/updated. Therefore, it is best practice for immigration attorneys to continue to follow up with consular posts to ensure that the consular officers are continually checking the CCD for updates.

London has announced its holiday schedule.

The U.S. Consulate in London (UK) has announced its intermittent holiday schedule for the Christmas and New Year period for 2011/2012. The the Non-Immigrant visa unit will be closed on December 23, 2011, through to January 3, 2012.

The last available interview date for authorized appointments scheduled through the Operator Assisted Information Service for the employees and their derivative dependents of an approved E-visa company in valid registered status with the U.S. Embassy London will be on December 22, 2011. The first available appointment for 2012 will be on January 3, 2012.

For prospective treaty investors and traders invited by the E-Visa Unit to arrange their interview by email, the last available appointment date for a treaty company pending adjudication at the U.S. Embassy London will be on December 19, 2011, the first available appointment for 2012 will be on January 9, 2012.

Normal service will resume for all Non-Immigrant E-visa applicants at 8.00am on January 9, 2012.

The E-visa applicants are advised to please plan any travel during this period accordingly to avoid delays and the inconvenience of a needless journey.

U.S. Consulate in Mumbai (India) to resume processing certain visas.

The U.S. Consulate General in Mumbai recently announced the resumption of interviews for H- and L-visas, after a temporary suspension, beginning in March 2011, due to issues with aging internal processing systems.

All interviews will be conducted at the Lincoln House Consulate building, located at 78, Bhulabhai Desai Road, until further notice. Visa appointments may be made online via VFS.

What is “visa shopping”?

“Visa shopper” is the term used to describe a foreign national who applies for a U.S. visa at a U.S. Embassy or Consulate where he/she thinks it will be easier to qualify for a visa, rather than the embassy or consulate responsible for the area where he/she lives.

Such applicants may be trying their luck, or they may be attempting fraud that they believe is less likely to be detected at an embassy or consulate that is unfamiliar with their home country conditions and fraud patterns.

Sometimes visa shopping takes applicants far away from their home country, as well as from their own region. A citizen of “COUNTRY X” living in “COUNTRY Y”, for example, should apply for the visa near where he or she lives, i.e. in “COUNTRY Y”. Tourists or business travelers however, would not ordinarily apply for U.S. visas in “COUNTRY Y” except under emergency circumstances. If they did, they might fit the definition of visa shoppers.

While not illegal, “visa shopping” is frowned upon by Consular Posts, in non-essential (i.e. non-emergency) situations. Under some circumstances, an accepted form of visa shopping, called “Third Country National” (or TCN) processing is permissible.

Cases presented to a Consulate outside of one’s ‘home district’ are accepted on a case by case basis, and at the sole discrection of the Consulate. One should resort to this measure VERY SPARINGLY and only when one feels genuinely compelled to do so, for reasons other than mere inconvenience. Essentially, one has to ask a Consulate for permission to submit (and for the consulate to accept) the case, due to special circumstances.

The consular posts reluctance to accept “visa shoppers” or “third country nationals” in non-essential situations, where reasons for the submission are not compelling, are usually two-fold:

  1. The Consulate already has a high volume of cases (= workload) to process, and wants to minimize its “Extra” load of non-mandatory case adjudications, and
  2. The Consulate may not be familiar with the foreign language of the applicant (where the applicant does not speak English), or may not be familiar with the nature of foreign supporting documentation as well as other considerations of the foreign applicant’s home country.

The Consular Post, may at its discretion, choose to accept an out-of-district application, particular if the reasons for the submission are compelling and/or the representative lawyer makes a good presentation of reasons to the Consulate for accepting the case. One should always be prepared to make several strong arguments well above and beyond “mere inconvenience”.

What happens when a foreign traveler applies for a nonimmigrant visa (NIV)?

While the process of applying for a U.S. visa at a consulate or embassy is not a secret, most people are not familiar with it, unless they have personally been through the process or maybe heard about someone’s experience with the process.

With some exceptions, U.S. law requires every applicant to make a personal appearance for an interview with a Consular Officer. If there are no national security concerns, Consular Officers may waive the personal appearance requirement for limited categories of applicants, including children less than 14 years of age; persons over 79 years of age; officials of foreign governments and international organizations; and, under certain circumstances, travelers renewing recently expired visas. It’s best to review one’s current situation and the current processing guidelines of the nearest consular post.

While oftentimes, a visit to the Consulate or Embassy can take hours, largely due to waiting times and security checks upon entrry, a typical visa interview lasts just a few minutes and often involves applicants trying to persuade the consular officer that they have firm plans to return to their home country after a visit to the United States, that they do not intend to cause harm to the U.S. or its interests, and that they are otherwise qualified for a visa. The interview is face-to-face although the consular officer is behind a blast resistant window.

Before the interview:

While the exact procedures can vary from Consular Post to Consular Post around the world, essentially all of the following points must be completed (maybe in a different order or sequence) by foreigners wishing to visit the United States:

1) submit a passport and a passport-sized photo;

2) pay the nonrefundable application fee (MRV) and obtain a receipt;

3) obtain an appointment date and time;

4) gather any required and supporting documents; and

5) fill out the visa application form and other required forms.

Getting to the interview window:

After the visa applicant arrives at the embassy or consulate on the appointed day, local consular staffers check the application, passport, photograph and any other documents submitted by the alien. In addition, consular staffers also check that all required data has been correctly entered into the computer system, and initiate a computerized check against a database of foreign nationals who have been denied or are ineligible to receive visas, or for whom other derogatory information is known. Consular employees collect digital fingerprints that are also checked against databases for derogatory information. The passport information is also checked against databases to determine if the passport has been reported lost or stolen.

By the time the visa applicant appears in front of the consular officer for his visa interview, the consular officer will have the applicant’s name check results and other data on a nearby computer screen. Consular officers, also called consuls and vice-consuls, conduct the interview, usually in the language of the foreign country.

Visa denials and ineligibilities:

The most common reason for a consular officer to refuse a visa to a non-immigrant visa applicant is Section 214(b) of the Immigration and Nationality Act. This section of the law requires applicants to convince the consular officer that the purpose of their trip is permissible under U.S. visa regulations and that they are true non-immigrants with the intention to return home after a temporary visit to the United States.

Other reasons for denying a visa application include staying longer than permitted during a previous visit to the United States, providing false information to visa or immigration officers, assisting other persons to violate U.S. immigration laws, convictions for certain criminal offenses, or having a communicable disease of public health significance. Except in very rare circumstances defined in regulations, consular officers always provide verbal and written notice and explanation identifying the section of U.S. law under which their application was refused.

Getting the visa to the applicant:

Depending on the procedures in effect at the embassy or consulate, Applicants who succeed in qualifying for a visa may be asked to return in order to pick up their passport with the U.S. visa attached inside, or they may pay a courier company, contracted by the embassy, for home or office delivery of the passport.

What does the stamp “APPLICATION RECEIVED” mean?

CBP officers and others may encounter foreign passports which have been stamped “Application Received,” usually with another stamp indicating the date and the name of a U.S. Embassy or consulate. The “Application Received” stamp usually appears on the back page of a passport. It means that the person applied for a visa on that day and the application was refused. Some kinds of refusals may be overcome, resulting in a visa inserted into the pages of the passport, dated after the date of the “Application Received” stamp.

Prospective travelers with an “Application Received” stamp will sometimes try to fraudulently disguise its receipt by covering it up, using chemicals to (try to) eradicate it or even by tearing out the last page of their passports. The Department of State discontinued the use of the “Application Received“ stamp in 2007 because information about visa issuances and refusals is now available electronically to CBP officers in the secondary environment.

USCIS now Naturalizing military-spouses at its overseas offices.

In January, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 into law. This new law amended portions of the Immigration and Nationality Act to allow certain spouses of members of the military to naturalize overseas where they are stationed.

Before January 2008, these spouses could only naturalize while physically within the United States.

Visa appointments made simpler? On week-ends?

In responding to increased workload, some Consular posts, like Kingston, Jamaica, have even begun experimenting with weekend appointments. In response to the growing demand for appointments, the embassy experimented with special Saturday-only visa renewal opportunity for holders of 10-year B1/B2 visas. Of the 1,048 who had registered as instructed and were interviewed on March 8, 95% had their visas renewed.