Receiving a denial notice from USCIS is a stressful and disheartening experience for any business owner. If your E-2 change of status denied decision has just arrived, you may immediately wonder if there is a higher authority you can appeal to. While the U.S. immigration system does not offer a formal administrative appeal process for these specific denials, this does not mean you have reached the end of the road. There are strategic alternatives that can still lead to a successful visa approval.
Is There an Appeal Process for E-2 Denials?
The short answer is no; there is no formal appeal process where a higher court reviews the merits of your denied E-2 change of status application. Unlike some other visa categories, you cannot simply ask for a second opinion from an appellate board. However, there is a procedural alternative known as a motion to reopen or a motion to reconsider.
Understanding the Motion to Reopen
A motion to reopen is a formal request asking the same USCIS office that denied your case to take another look. To be successful, you cannot simply argue that you disagree with the decision. You must demonstrate that there is new evidence now available that could not have been presented at the time of filing, or that there was a clear error of law or policy made by the adjudicator. While these motions are technically available, they are extremely difficult to win. USCIS rarely overturns its own decisions unless there is a glaring mistake or undeniable new facts, making this option rarely successful for most applicants.
The Strategic Alternatives: Moving Forward After a Denial
In most cases, experienced immigration attorneys advise against pursuing a motion to reopen due to its low success rate and long processing times. Instead, it is often more strategic to opt for one of two alternatives.
Reapplying for the Change of Status
If the denial was based on a fixable error—such as missing a specific document or a misunderstanding of the business plan—you can simply file a brand new change of status application. This allows you to address the reasons for the denial directly in your new submission, strengthening your case with additional evidence or clarifications that were missing from the first attempt.
Applying for an E-2 Visa at a U.S. Consulate
This is often the most recommended path. Applying for the visa directly at a U.S. consulate or embassy abroad (Consular Processing) offers a fresh start. Consular officers are distinct from USCIS adjudicators and may view the case differently. This process is often more streamlined and, crucially, results in a visa stamp in your passport, allowing for international travel—something a change of status does not provide. However, you must be transparent about the prior USCIS denial and ensure you have fully addressed the issues raised in that decision.
Key Considerations Before Taking Action
Before you choose your next step, you must carefully review the denial notice to identify the specific reasons your application was rejected. Was it a lack of investment? A marginality issue? A failure to prove the source of funds? Understanding the root cause is essential. An experienced attorney can help evaluate these reasons and guide you toward the course of action—whether reapplying or going to a consulate—that offers the highest probability of success.
Conclusion
While there is no formal appeal process for a denied E-2 visa change of status application, you have viable options. Whether you choose to reapply with USCIS or pursue consular processing, the key is to learn from the denial and build a stronger, more bulletproof case.
At Scott Legal, P.C., we specialize in complex E-2 visa applications and can assist you in navigating the complexities of a denial. We invite you to download our free guides, sign up for one of our free webinars where you can ask questions, or schedule a consultation with us to explore your options.
