Securing an E2 Visa requires preparation, but unexpected hurdles like a 221(g) refusal due to a past DUI (Driving Under the Influence) can delay or jeopardize your business plans. Recently, Malescu Law successfully navigated this complex scenario, securing a 5-year E-2 visa approval—the maximum duration for Canadian citizens—at the US Consulate Toronto after DUI and 221g refusal.
Understanding the Section 221(g) Refusal
A visa refusal under Section 221(g) of the Immigration and Nationality Act (INA) is often a source of significant stress for investors, but it is not necessarily a permanent “no.” Generally, a 221(g) is a temporary refusal that indicates an applicant has failed to establish eligibility to the satisfaction of the consular officer at the time of the interview.
When a consular officer issues a 221(g) notice, it typically falls into two categories:
- Missing Documentation: The officer requires additional evidence—such as updated financial records, certified court dispositions, or specialized clearances—to make a final determination.
- Administrative Processing: The case requires further internal review by the Department of State or other government agencies. This is common when legal complexities, like a past DUI or a prior arrest, require a deeper background check.
Under Section 291 of the INA, the burden of proof lies entirely with the applicant. If you receive a 221(g) refusal, you generally have one year from the date of the interview to provide the requested information. Failure to respond within this window results in the permanent termination of the application, requiring you to reapply for the visa and pay new fees.
At Malescu Law, we treat a 221(g) as a critical window for strategic intervention, ensuring that the response is not only complete but also persuasively argued to secure a prompt approval.
Overcoming the 221(g) Refusal and DUI Complications
In this specific case, the principal E-2 investor faced an initial refusal under Section 221(g) of the Immigration and Nationality Act (INA). The refusal stemmed from the spouse’s DUI charge, which occurred over 20 years ago.
Despite the record being expunged years prior, the consular officer placed the case in administrative processing, requesting specific documentation from the spouse to establish eligibility:
- A recent RCMP Certified Criminal Record Check.
- Certified court records and transcripts (state, county) detailing the disposition of the DUI charge and blood alcohol content (BAC) at the time of arrest.
Response and Strategic Documentation
Applicants typically have one year to respond to 221(g) refusals, but delays can stall business operations especially for E2 investors.
Our team acted immediately, collaborating with the iverstor’s criminal defense attorneys to obtain the state and county court records from an expunged case. Within 10 days, we compiled a comprehensive response. Just three business days after submission, the US Consulate Toronto issued the E-2 visa approval.
Key Takeaway for E-2 Investors
No matter how old your DUI charge is — 10, 20, or more years ago — and even if the record has been expunged, U.S. immigration law still requires full disclosure and supporting documentation. Failing to have those documents ready can result in your visa being refused and placed in administrative processing.
Overview of E2 Visa
The E-2 Investor Visa is a nonimmigrant visa for nationals of treaty countries to live and work in the U.S. by investing in a US business. This visa also extends to the investor’s spouse and unmarried children under 21. Furthermore, E-2 businesses can bring E2 employees in executive, managerial, or specialized roles essential to the firm’s operations in the U.S. You can establish a new business or buy an existing business to qualify for the E-2.
You can apply for E2 visa at a US Consulate abroad or through change of status to E2, if you are in the US. Keep in mind that applying for E2 while in the US is possible under certain circumstances, but is not available to individuals travelling to the United States on ESTA.
To learn more about visas for Canadians, visit E2 visa for Canadians and US visa for Canadian citizens.
To learn more about the options available for children aging out E2 visas visit Children aging out of E2 visa: What are their options?
Find out more about other E-2 visa success stories and approvals, E-2 visa for spouse and dependents, E-2 visa renewal process, other investment visa options, , E-2 for Australians, E-2 for UK Citizens and other visa options to start a business in the US for you.
Why Partner with Malescu Law for Your E-2 Visa?
Our E2 visa lawyers specialize in complex E-2 visa applications, including those involving existing business acquisitions, holding companies, complex corporate structures or E2 visa refusals.
Navigating the intersection of E2 investment and U.S. admissibility rules requires more than just filling out forms; it requires a complex legal strategy.
- Proven Crisis Management: We assist in reversing 221(g) refusals and resolving complex administrative processing delays.
- Consulate Expertise: With extensive experience at the US Consulate Toronto and US Consulates worldwide, we understand the specific local requirements for investors and global entrepreneurs.
- Active Advocacy: We don’t just wait for requests; we proactively identify potential “red flags” like past arrests or expunged records to ensure your case moves from submission to approval in record time.
We serve companies and individuals across all 50 states, the District of Columbia and Puerto Rico.
Contact us or schedule a consultation.
Malescu Law P.A. – Business & Immigration Lawyers
