Questions and Answers > EB-5 Investments

How would denial of a tourist visa renewal affect an EB-5 petition?

My friend is a Colombian investor and businessman. He is interested in the EB-5 program. He has two daughters and grandkids in the United States. He has properties in the United States too. He previously had a tourist visa, but last time when he went to renew his visa it was denied. He does not know why and he has tried three times to get it renewed without success. He wants to know if under these circumstances he can still apply for EB-5? Would the tourist visa denials affect his EB-5 application? How would he find out why his tourist visa renewal was denied?

Answers

• Echo Meisheng King

  Immigration Attorney

  Answered on February 15, 2016

  The denial of a tourist visa usually will not have a negative impact on an EB-5 application, provided the denial is not due to another inadmissible ground such as a criminal conviction or association with a terrorist group. A tourist visa is denied when the consular officer believes the applicant is using the B visa for other than the intended purpose, or when the applicant demonstrates immigration intent. EB-5 itself is an immigrant visa; therefore,the previous immigration intent determined by the consulate will not affect the EB-5 adjudication.

• Julia Roussinova

  Immigration Attorney

  Answered on February 15, 2016

  If there are no issues of inadmissibility that should be reviewed with a competent immigration attorney, a tourist visa denial based solely on your friend's failure to demonstrate nonimmigrant intent (as your friend has family and property in the United States and probably stayed on a tourist visa for long periods of time previously) should not preclude ability to proceed with the EB-5 visa process. Your friend should contact an experienced EB-5 immigration attorney to evaluate your friend's situation.

• Ian E Scott

  Immigration Attorney

  Answered on February 12, 2016

  Unless the denials related to fraud or misrepresentation, the B visa denials should not impact the EB-5 application. Usually B visas are denied because the consular officer believes the applicant has immigrant intent. As the applicant has property and children in the United States, this may have contributed to the conclusion. If the applicant applies for a B visa again, they should hire an immigration lawyer so that they are putting the best case forward. Usually consular officers at the interview give some indication of why they are denying the application, but they could just give a generic catch-all reason.

• Olivia Orza

  Immigration Attorney

  Answered on February 12, 2016

  The answer to this question depends on the reason for the denial of the tourist visa. The denial of a tourist visa would not necessarily affect an EB-5 petition.

• Johanna Keamy

  Immigration Attorney

  Answered on February 12, 2016

  Based on the facts of this matter, it appears that the U.S. embassy may have denied your friend's application under a 214(b) denial for immigrant intent because he has two daughters, grandkids, and property in the United States. It is unknown whether he overstayed a tourist visa in the past or if he had any recent criminal convictions, but it appears like the denial concerns immigrant intent. The denial should not preclude him from participating in the EB-5 program and getting an immigrant visa. Your friend should have a notice of his denial from the embassy. The Department of State requires posts to explain the reasons for denial to an applicant. (9 FAM 41.121, 42.81.) Before denying a visa, a consular officer should inform the applicant of the section of law under which the visa was refused, as well as the underlying factual basis for the refusal unless the facts are classified or secret and unclassified.

• Jinhee Wilde

  Immigration Attorney

  Answered on February 12, 2016

  Your friend's tourist visa was probably denied because he was seen as having immigrant intent - having family here, business interests, and properties would make it more likely than not that he has immigrant intent. He would have been given a denial letter with some box checked to tell him why he was denied. I would guess that a box with 214(b) would have been checked, which indicates that the consulate officer determined that he has immigrant intent. If that is the case, then the good news is that having had those tourist visas denied does not have any bearing on getting the EB-5 visa, which is an immigrant visa, unless his denials were based on inadmissibility grounds, such as a criminal record or unlawful presence, etc. Thus, if he is interested, he should start quickly, as the EB-5 program has a deadline of Sept. 30, 2016.

• Salvatore Picataggio

  Immigration Attorney

  Answered on February 12, 2016

  It depends on the reasons for the denial. Crimes of moral turpitude or former removal from the United States would have a different effect on future process than being denied for lack of ties to the home country.

• Mark Kowalewski

  Immigration Attorney

  Answered on February 12, 2016

  Based on my understanding and experience, when a consulate denies a visa, a written explanation is provided to the visa applicant. The most common reason for denial is the applicant's inability to demonstrate their "nonimmigrant intent." In other words, they fail to convince the consular officer that they have sufficient social, economic, and/or family ties to their home country that are going to compel them to return after a short visit to the United States. A recent headline explains the problem: MIAMI - Nearly half a million foreigners who legally entered the U.S. remained here after their visas expired last year (2015), according to a government study that is the first of its kind. Again, based on my understanding and experience, the denial of a nonimmigrant visa should not affect the outcome of a subsequent EB-5 application.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on February 12, 2016

  A tourist visa is discretionary, so as long as not denied for a ground of inadmissibility, the green card should go well.

• Charles H Kuck

  Immigration Attorney

  Answered on February 12, 2016

  It was denied because he did not prove to the satisfaction of the consular officer that he was going to return to Colombia when his visit was over. He can always reapply. The denial of the B-2 does not affect his ability to get the EB-5.