Visa Lawyer Blog
As the Hospitality business was booming in the US, more and more Hospitality professionals in Europe came to the US and started their own businesses via the E2 visa investment. The same happened to Dean and Laura Franks, a British couple who opened the restaurant in 2000 in the state of Maine.
They used the E2 visa, the nonimmigrant investor visa. It is a temporary category that is granted in two-year to five year increments with no limits on the number of extensions. Now they found that after nine years of running their business, they could not renew their visa, forcing them to shutter the restaurant and leave the country. They are not alone. In the past few months we have seen numerous, E2 and L1A visas get denied for no valid reason. Is the US government turning investors away, are they denying cases intentionally? If so why now?
In denying the Franks’ renewal application last year, immigration officials said their restaurant had become a marginal business. The government sets no specific dollar amount, but it defines a marginal enterprise as one that “does not have the present or future capacity to generate more than enough income to provide a minimal living” for the visa holder and his family.
The Franks were surprised and confused to learn last year that they were deemed marginal. Their tax returns show that their gross annual income in 2008 was $64,000, in addition to rental income of $16,800. Their gross profit for the year was $38,800, which was down from their gross profit in 2007 of $50,700 because of the recession, which hit most businesses. They said they barely needed more than enough to provide for minimal living because that is how they live — minimally.
This is a very subjective test, and we are concerned that many Immigration officers are now applying it more freely.
Immigrants have an ever-increasing role in the creation of small businesses. Immigrant entrepreneurship is widely recognized as having a significant impact on traditional industries such as retail, ethnic restaurants and markets, and garment manufacturing. But new industries in the technology sectors are playing an increasingly important role in the domestic economy and in creating professional links with the international markets in their countries of origin. We hope that the Immigration Service and State Department will stop denying extensions to small businesses that sustain our economy and create jobs to US Citizens.