E-2 visa refusals for real estate investment and rental enterprises
Posted by Jeff Xie on November 10, 2002 at 22:11:21
22 CFR 41.51(m) requires that: “The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.” 9 FAM 41.51 N9 further states that the enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. It cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor without the intent to direct the enterprise. Normally, the management of developed commercial or residential property would be a real and active (rather than merely passive) commercial investment and would qualify for E consideration. However, other issues sometimes arise relating to this type of investment. One is that the E-2 applicant must show that the principal purpose of entry is related to status. There have been cases in the past, for example, where the investment involved several time-shares overseen by a property management company, that required little actual oversight by the investor. The application in those cases was denied not because the investment was “passive” but because the applicant was not able to demonstrate that the applicant’s principal purpose for entry was related to management of the investment. Another problem that may arise is if the investment is financed significantly by a mortgage, in which case it may not be considered substantial based on the “proportionality” test. DOS Answers to AILA Questions (10/02/2002)
AILA InfoNet at Doc. No. 02100340 (Oct. 3, 2002) .
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