November 2022 Updates: E-2 Renewal Rejections for PPP Loan Recipients, Changing Embassies for Green Card interviews and More!

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In this video, we bring you a new update from the State Department, based on recent conversations between State Department officials and representatives of the American Immigration Lawyers Association (AILA).

We will specifically cover topics such as visa processing for third country nationals wishing to secure interview appointments at Consulates and Embassies worldwide, the fate of E-2 visa renewal applicants who previously applied for loans under the Paycheck Protection Program (PPP), the permissible activities of B-1 visa holders while in the United States, issues relating to visa inadmissibility, and nonimmigrant visa denials.

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If you would like to know more about the recent updates from the State Department, just keep on watching.

Overview

The U.S. Department of State recently met with representatives of the American Immigration Lawyers Association (AILA) to discuss several immigration topics that have been frequently asked by our viewers. Here we provide a summary of those updates and useful information that may be helpful to you.

Visa Appointments for Third Country Nationals

Applicants of certain nationalities have been experiencing difficulties obtaining visa interviews in their home country. For instance, recent political demonstrations in Iran have made it more and more difficult for applicants to travel to neighboring countries, leading applicants to seek visa appointments elsewhere.

Since the United States does not maintain a diplomatic presence in Iran, applicants can travel and apply at any U.S. Embassy or Consulate that processes their visa type. The U.S. Embassies in Ankara, Yerevan, and Dubai are staffed with Farsi-speaking consular officers who are most familiar with Iranian visa applicants, and therefore are encouraged to apply there. However, visas for Iranian applicants can also be processed at other U.S. Embassies such as Abu Dhabi, Frankfurt, Naples, and Vienna.

For others, obtaining a visa interview in their home country has been nearly impossible leading many to ask whether they can apply elsewhere as a third country national.

To ensure that you can apply at a specific Consulate or Embassy overseas, you should always check the website of the specified embassy or consulate where you plan to apply to check for restrictions on third-country applicants or post-specific policies. Where possible, applicants should contact the Consular post or Embassy to make sure that they made apply for their desired visa type as a third country national. All Consulates and Embassies either provide their contact emails directly on their webpage or have a contact form that you can complete to make an inquiry.

If you are an immigrant visa applicant with a scheduled appointment, and you can no longer attend your interview due to circumstances beyond your control, or your Embassy or Consulate is experiencing severe backlogs, you may apply as a third-country national at another post as long as the post is accepting applications from third country nationals. To expedite this process, you may consider seeking the assistance of an experienced immigration attorney who can help you navigate the potential Consulates and Embassies where you can apply.

As it stands, the State Department has said it will not hinder visa applicants from applying as a third country national outside of their country of origin.

The same principle applies to certain non-immigrant visa applicants. If your post is taking an unreasonable period of time to schedule your interview, or is working on a very limited capacity, you should carefully research whether the post you wish to apply will accept your application as a third country national. Again, you may wish to speak to an immigration lawyer who can help you understand the process and which posts may accept your application.

Issues for E-2 Visa Renewal Applicants who received PPP loans

Another interesting topic discussed by State Department officials involves problems arising for E-2 visa renewal applicants who previously applied for and received loans under the Paycheck Protection Program (PPP).

The Paycheck Protection Program (PPP) was established by the CARES Act at the height of the COVID-19 pandemic and was implemented by the Small Business Administration.  The program provided SBA-backed loans to small businesses to keep their workforce employed during the pandemic.

E-2 visa investors operating their businesses in the United States were eligible to receive these SBA-backed loans to keep their employees on payroll.

Recently, U.S. Embassies have been denying E-2 visa renewal applications for investors who received PPP loans from the SBA, based on the rationale that receiving such a loan renders their businesses “marginal,” meaning that the applicant has failed to demonstrate a present or future capacity to generate sufficient income – a requirement of the E-2 visa.

AILA representatives raised this phenomenon with State Department officials who have said they have not issued any guidance nor memorandums to Consular posts or Embassies directing them to deny renewal applicants based on issuance of PPP loans.

Applicants who have received a PPP loan should carefully document all spending of the PPP loan to demonstrate to the Consular official that the loan covered payroll only for the specified period, and thereafter the company continued to make sufficient income to maintain the workforce.

E-2 renewal applicants who received PPP loans, may consider speaking with an experienced immigration attorney to discuss what additional documentation should be brought to the interview to satisfy the marginality requirement. In some cases, investors may need to revise their business plan and/or bring financial documentation to prove that the business is generating sufficient income to meet the marginality requirement.

Permissible Activities for B-1 Temporary Business Visitors

Recently, many U.S. Embassies and Consulates have been denying applications for B-1 temporary business visitors, specifically for artists seeking admission to the United States for short visits. Consular officials have told applicants that they must apply for the P visa instead.

The problem with this is that quite a few of these applicants do not qualify for the P visa. AILA representatives raised this issue with State Department officials who have said they will be revising their internal policy, to ensure applicants are allowed to apply for the visa type that best fits their qualifications.

Those who find themselves in such circumstances should consult with an immigration attorney to discuss whether they should reapply for the B visa, or whether another visa type is most suitable based on their qualifications.

Long-pending Immigrant Visa Applications

Recently, Consular officials have been denying non-immigrant visa applications filed by individuals with long-pending I-130 petitions. For instance, many applicants have been previously sponsored by a brother, or a parent for an immigrant visa, but their petition has remained in the visa backlogs for many years.

In the meantime, such applicants have tried to apply for a non-immigrant visa such as a B-2 tourist visa and have been denied at the consular level, based on the rationale that they have immigrant intent stemming from the filing of the I-130 petition. Additionally, those who previously applied for the diversity visa lottery have faced scrutiny based on their perceived immigrant intent.

The State Department has provided further clarification stating that those with a pending I-130 petition, and those who previously applied for the diversity visa lottery, do not have immigrant intent solely based on these filings. These individuals may still apply for the tourist visa if they meet the qualifications.

They have clearly stated that consular denials must be based on an applicant’s failure to meet a specified criteria of the B-2 visa, and not merely on the filing of an I-130 petition or diversity visa lottery registration (for instance failure to provide sufficient proof of ties to their home country).

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