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I noted with interest the comment from one of the panel declaring that if the alien is in the US on an E-2 Visa, it is likely to lead to an audit - presumably because DOL feel that an investor running a business would not seek to take up employment elsewhere.

I have several questions in this respect and thank you in advance for your kind attention:

1) Can you clarify that all E-2 status applicants WILL get audited - or is this just an opinion. Have there been any such cases?

2) Why is this a potential problem in the first place? Surely an Investor could be at a point in his life where he no longer wishes to be a business owner with all the inherent responsibility and wishes to take an employment position elsewhere.

3) What about E-2 spouses (that may or may not have an A18 EAD). Would an E-2 spouse run into the same problems? Does the 9089 form differentiate between the E-2 principal and the E-2 spouse?

4) If the alien holds an E-2 Investor Visa ... but is physically outside the U.S. on the day that the 9089 form is filed, could 'n/a' be chosen in respect of the alien's status? Surely this would this alleviate the problem if it were the case. Or could this cause problems down the line when filing the I-140/I-485 when the alien would be back in E-2 status?

5) If an audit is received because of the E-2 status of the applicant, what do you feel would be the likely line of questioning and how might be the best way to respond?

Answer by Edward Litwin:

This is an opinion. However, it is based on either a case or previous liaison minutes. The primary issue is one of alien ownership. Since many E-2 holders own their own businesses or have a share in the business, the Department of Labor is suspect about "undue influence."

The questions seem to focus on an E-2 who is looking elsewhere for employment. In such a situation, if there is an audit, documenting that the labor certification is being filed by an employer other than the E-2 employer, or that the employee of an E-2 company has no ownership or influence, would be sufficient to demonstrate no "undue influence."