Can An E-2 Visa Denial be Appealed? What Happens if My E-2 Visa is Denied? What can you do if your E-2 visa has been Denied?

Scott Legal, P.C. has processed hundreds of E-2 visa applications and the firm has an approval rate of approximately 97%. (past results do not predict future outcome).  While most E-2 visas are approved, there are some instances where E-2 applications are denied.  To find out more about some common reasons for E-2 visa denials click here.   You can find out more about the E-2 visa requirements by clicking here.

A common question after an E-2 visa denial is whether an E-2 visa denial can be appealed.  The short answer is No.

Can I appeal my E-2 Visa Denial at Consulates?

No.  An appeal is a request for a different authority to review the decision.  When an E-2 applicant is outside of the U.S. and applying for an E-2 visa at a U.S. Consulate, a denial cannot be appealed.  This means that there is no formal process to attempt to re-adjudicate the petition or complain about the outcome.   A Consulate is not required to provide a reason and the officer’s decision is final.  There is not even a mechanism to speak to a supervisor.  In some instances, after the fact the applicant or lawyer can write to the Consulate to get clarification on why the petition was denied but this will not result in the petition being revived and/or re-adjudicated.

As such, when a petition is denied, the only option is to address whatever deficiency the officer noted and reapply.  As such, it is very important to get as much information from an officer as you can regarding the reason for the denial so that it can be addressed.

Recently we had an E-2 visa denial at a Consulate because the officer felt that the applicant did not have sufficient ties to their home country.  This is a very unusual reason for an E-2 visa denial (this visa is very close to a dual intent visa) but the officer made it clear during the interview that this was the reason for the denial.  To address the concern, we immediately reapplied and submitted extensive documentation regarding the applicant’s ties to her home country (home, investments, business, etc.) and the application was approved on the second attempt.  In another instance an applicant came to our firm after 4 denials (3 attempts on his own and one with a lawyer who was not familiar with E-2 visas) and we were able to refile and get the E-2 visa approved.

Can I appeal an E-2 Visa Denial from USCIS?

When you are in the U.S. and apply for an E-2 visa through USCIS and the application is denied, the denial notice will explain options regarding any potential next steps.  One notable bit of language on the USCIS I-797 denial notice though is that the decision cannot be appealed.  This means that the applicant cannot ask a different body to revisit the application and weigh in.  Instead, the applicant’s only option is to file a motion to reconsider or reopen the case (both very difficult to succeed).  These motions both mean that USCIS (the same body that denied the application) will again look at the petition. The two are defined below.

“A motion to reopen is a request to the office that issued the unfavorable decision to review its decision based on new facts.  The motion must state new facts and be supported by affidavits or other documentary evidence demonstrating your eligibility at the time you filed the underlying application or petition.”

“A motion to reconsider is a request to the office that issued the unfavorable decision to review its decision based on an incorrect application of law or policy.”

In short, if your E-2 visa has been denied, there are very few options available for appeal.

What can you do if your E-2 visa has been Denied? Can I reapply if my E-2 visa has been denied?

You can find out more about the options if your E-2 visa has been denied by clicking here. Generally, though the recourse is correcting the deficiency and reapplying.