Having a nonimmigrant visa application denied produces a number of very real setbacks for the applicant. In the case of an E-2 visa, typically much time, money, and effort has been dedicated to the filing of a good-faith application. Even though an E-2 visa denial does not have a lasting negative impact on the applicant, and the individual is free to re-apply without facing any prejudice, it still has the potential to produce negative consequences in the short-term. Chief among these is the inability of the individual to travel on the Visa Waiver Program (VWP) by using the Electronic System for Travel Authorization (ESTA) after receiving a denial.
Travelers from the 38 countries benefiting from the Visa Waiver Program with the United States quickly get used to the expediency and freedom that comes with the ability to simply fill out an ESTA application on-line for approval to travel to the U.S. to apply for admission at a port of entry. Many would-be E-2 investors and employees are unaware that a denial of an E-2 visa application filed with an overseas consulate will then trigger a denial of a future ESTA application. This will then necessitate the filing of a DS 160 application for a B1/B2 visa to be issued by a consulate before any travel to the U.S. can be undertaken.
This obstruction is by no means insurmountable, but it should be addressed when exploring the worst-case scenarios of having an E-2 visa denied. Often E-2 visa applicants have travel obligations that must be met shortly after the filing of the visa. This may be any number of things, from receiving a shipment of goods delivered to the U.S. business address in anticipation of a commercial launch, to undertaking the necessary steps to wind-up a business that never officially started. The denial of the underlying E-2 visa should not have a negative effect on the B1/B2 visa application, and most of the time just a few minutes are required to explain to the consular officer that the denial was a result of failing to satisfy visa eligibility requirements, rather than as a result of criminal or immigration violations.
Canadian travelers seeking entry to the U.S. on TN visas (or entering as a tourist) at a port of entry have an avenue for relief not available to travelers who have submitted DS 160s and have had a case adjudicated. In the case of a Canadian TN visa denial or a refusal of entry as a tourist, the traveler should seek to withdraw the application rather than have the denial processed and entered into the record. You should simply ask the officer to withdraw your application. The officer is not obligated to withdraw your application but if he does it means that you may not technically have a denial on your record. Further information on travel authorization eligibility on ESTA and prior visa denials is available here.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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