Can I Get an E-2 Visa If I Have an I-140 Denial?

A common concern for visa applicants is whether a denial of an I-140 petition could impact their eligibility for an E-2 investor visa. The good news is that an I-140 denial does not automatically disqualify you from obtaining an E-2 visa. However, understanding the legal implications of your prior I-140 petition is crucial when applying for an E-2 visa.

When an applicant files Form I-140 (Immigrant Petition for Alien Workers), they must indicate whether they intend to pursue a green card through consular processing or adjustment of status. If the I-140 is denied and you did not concurrently file Form I-485 (Application to Register Permanent Residence or Adjust Status), then you have not signaled immediate immigrant intent.

Since the E-2 visa is a non-immigrant visa, meaning it requires applicants to demonstrate that they do not intend to remain in the U.S. permanently, prior immigrant intent can sometimes raise questions during the visa adjudication process. However, an I-140 denial does not indicate ongoing intent to immigrate, making it unlikely to impact an E-2 visa application.

1. Understanding Non-Immigrant Intent Rules
   • The U.S. immigration system does not prohibit someone with a prior green card attempt from applying for a non-immigrant visa.
   • However, the key factor is whether you intend to use the E-2 visa to enter the U.S. solely for business purposes and not for immigration purposes.
2. Explaining Your Immigration History to a Visa Officer
   • Be prepared to clarify the difference between an I-140 denial and having active immigrant intent.
   • A visa officer may ask about your previous I-140 filing, and it is important to clearly explain that the green card application is no longer active and that you are entering the U.S. for business investment purposes only.
3. Avoid Indicating Immigrant Intent on Entry
   • The E-2 visa does not allow for direct adjustment to a green card, so when entering the U.S., you should not have an intention to adjust status.
   • Your responses at the port of entry should be honest and align with the temporary, business-focused nature of the E-2 visa.
4. Consult with an Immigration Lawyer
   • While an I-140 denial does not prohibit an E-2 visa, every immigration case is unique.
   • An immigration lawyer can help assess whether additional documentation or legal explanations are necessary when applying for an E-2 visa.

If your I-140 petition was denied, you are still eligible to apply for an E-2 visa. The E-2 visa is a non-immigrant visa, however your previous I-140 filing should not automatically disqualify you. You should be prepared to explain your immigration history to the consular officer and ensure that your application clearly demonstrates your temporary intent to invest and run a business in the U.S. If you are unsure how your prior immigration history may affect your application, consulting with an immigration attorney can help you navigate the process smoothly.