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Key Issues Concerning E-2 Visa Application At The US Embassy In Seoul

by Young H. Noh

Having handled approximately 70 E-2 visa application in the course of last 12 months at the American Embassy in Seoul, Korea, said writer would like to share what he believes are the key issues that need to be considered for a successful E-2 visa application. The points addressed can be applied to other Embassies as well as other visa applications.

Advising E-2 Businesses

As counsel and acting liaison between an E-2 visa applicant and the Embassy, it may be necessary to advise a client about businesses, which may not be suitable for the E-2 visa application. For example: if a business lacks documentation such as tax returns, employment records, or other documentary evidence that may be necessary to convince the consular office that the business is viable, the contemplated business may not be a good candidate for E-2 visa. The fact that the contemplated E-2 business does in fact generate a good profit may not make that business a good candidate for E-2 visa, unless there are documents to back up that fact. If this is not the case, you may wish to advise your client against purchasing said business for the purpose of obtaining an E-2 visa. It does neither the client or the representing attorney any good when the client wants the immigration attorney to handle the case AFTER the client purchases an existing business without any documentation to evidence that it generates a good profit.

Business plan

Past experience has proved that the preparation of a straightforward and concise business plan is preferred over one that is complex. When reviewing an enterprise's business plan, the processing consular officer seeks evidence that indicates the Applicant's understanding of the enterprise, and that the investor has a firm understanding of what he/she wants to do, and how he/she intends to operate the enterprise - as well as the 5 year projections of revenue and expected profit. A business plan should have documentary evidence supporting the enterprise's projected course of action, and should not be unrealistically ambitious or glowing. Most consulate officers can see through blatant exaggeration. For this reason, sometimes starting a new business is a lot better than purchasing a lousy, existing business.

Thorough Preparation for Interview

Although the applicant's attorney will be given opportunity to speak at the end of the interview, the Embassy's primary interest is in the applicant himself, so occasions to speak on the client's behalf will be limited or will not be appreciated. Thus, it is absolutely essential that you thoroughly prepare your client for his E-2 visa interview - especially since E-2 visa interviews are now mandatory. By conducting several mock interviews with your client, he will have an opportunity to prepare adequate answers for questions the consular office will almost surely ask. Taking such precautionary measures helps to prevent miscommunication between the applicant and consular officer, either due to mistranslation of questions and/or answers OR the applicant's own nervousness. I found that being bilingual definitely helps to correct any blatant mistranslation by the Embassy translators.

The fact that the applicant is independently wealthy does not mean the marginality issue is met

Many immigration practitioners still try to prove that the marginality requirement has been satisfied through the sole fact that the visa applicant is independently wealthy. There used to be language under FAM which supported an argument that the E-2 visa applicant's independent wealth should satisfy the requirement. The specific FAM language used to support this argument was deleted some time ago; yet, this argument is still being used. Consular officers at Seoul Embassy will look at the subject business - not the fact that the E-2 visa applicant is independently wealthy - to issue E-2 visas.

With regards to the consular officer

Consular officers working in the E-2 Visa sections are rotated every 6 to 8 months. The backgrounds and dispositions often differ slightly among the various counselor officers. For instance, some officers may be particularly knowledgeable about business operations, and thus more concerned with the applicant's invested enterprise, while another officer may only be primarily interested in ascertaining whether all legal requirements have been properly documented.

Although the issues relate specifically to the case of E-2 visa applicants in Korea, the situations described are not by any means exclusive to the Embassy in Korea, nor to E-2 visa applicants.

About The Author

Young H. Noh is an expat U.S. attorney working and residing in Korea. He is co-author of the Chapter on American Embassy in Seoul in Visa Processing Guide published annually by AILA. Young Noh represents Korean clients with their immigration and visa cases and also works with Korean-licensed attorneys to represent non-Korean clients with business and litigation cases involving Korean law. Mr. Noh can be reached at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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