Maine Business Shut because E-Visa not renewed

[Kathryn41 3,205]

http://www.nytimes.com/2010/05/30/us/30visas.html?pagewanted=1&th&emc=th

Maine Business Is Shut Without a Renewed Visa

By KATHARINE Q. SEELYE

Published: May 28, 2010

"Maine Business Is Shut Without a Renewed Visa:Dean and Laura Franks are among thousands of people who enter the United States on visas that allow them to invest and work. But extensions on those visas are now being denied.",

WELLS, Me. — It was an unusual sign, even for a restaurant here along the Maine coast, where seasonal home-grown businesses are a way of

life.

“Closed. Gone to try and get a new visa,” read the hand-scrawled message taped inside the window of Laura’s Kitchen, a cozy eatery that

specialized in corned beef hash and omelets and where the tiny tables were still set with brightly colored napkins. “Hope to see you in the

spring. Dean & Laura.”

The sign turned out to be overly optimistic. Dean and Laura Franks, a British couple who opened the restaurant in 2000, found that after nine

years of running their business, they could not renew their visa, forcing them to shutter the restaurant and leave the country.

The Franks are among thousands of people who enter the United States each year on E-2 visas, which allow citizens from countries with which

the United States has certain trade treaties to invest in businesses and work here. The visas generally are renewed every two years, but

there is no limit on how many times they can be renewed. Still, they are not intended as a path to permanent residency or citizenship.

But now, immigration advocates say they are hearing more and more accounts of renewal applications being turned down. It has been an enigmatic process for the Franks, uprooting their lives even though they have paid all their taxes, own the restaurant and its adjacent rental house, and have no debts except a mortgage on their home in Arundel, about 35 miles away.

“This is the forgotten story of immigration,” said Angelo Paparelli, a prominent immigration lawyer in California. “The headlines deal with

Arizona and border crossings, but these are real people too. This is what happens when you play by the rules.”

In denying the Franks’ renewal application last year, immigration officials said their restaurant had become a marginal business. The

government sets no specific dollar amount, but it defines a marginal enterprise as one that “does not have the present or future capacity to

generate more than enough income to provide a minimal living” for the visa holder and his family.

The Franks were surprised and confused to learn last year that they were deemed marginal. Their tax returns show that their gross annual

income in 2008 was $64,000, in addition to rental income of $16,800. Their gross profit for the year was $38,800, which was down from their

gross profit in 2007 of $50,700 because of the recession, which hit most businesses. They said they barely needed more than enough to provide for minimal living because that is how they live — minimally.

“We live frugally, we don’t drink, we don’t smoke, we don’t party, and we live within our means,” Mr. Franks said by phone earlier this year

from Nova Scotia, where friends had given them use of an empty house. “We pay all our bills, we don’t have car payments, we pay our credit

cards off every month, and that seems to count against us.” Daniel Maranci, a lawyer in Boston who represented the Franks, said the

couple met the test of earning more than enough to make a living because they had enough to hire three or four Americans as waiters and

to pay for their properties. “The marginality requirement is fairly subjective,” Mr. Maranci said. “U.K. nationals are saying there has been a shift generally in the way these cases are being adjudicated, with a more draconian view of marginality.”

Over the last two and a half years, 8,468 requests for E-2 extensions have been filed, and their approval rate does appear to have dropped,

according to figures provided by William G. Wright, a spokesman for the United States Citizenship and Immigration Services. So far in the 2010 fiscal year, he said, 82 percent of the applications have been approved. In 2009, 84 percent were approved, and in 2008, 91 percent. The service does not track the reasons for denial, so the extent to which marginality was a factor is not clear.

The Franks said the vagueness of the standards made them hard to meet. “Because there are no hard and fast rules, they can get you on whatever they want,” Mrs. Franks said. Mr. Wright, who said he was speaking generally about the process and not about the Franks’ case, said that the most recent internal reviews of the decision-making process showed that adjudicators abided by proper standards in 97 percent of cases. “The adjudicators are doing their job,” he said.

Mr. Paparelli, the California immigration lawyer, said that in recent years, E-2 visa holders were being foiled by a confluence of trends,

including an increased vigilance by government officials after the Sept. 11 attacks; a perception by officials that “evil people” may be

using these visas fraudulently to get into the United States; a bureaucratic disinclination to take the time to examine applications by

mom-and-pop operations; and immigration officers’ perceptions that local economies already hurt by the recession and job losses could not

sustain more businesses.

In England, Mr. Franks, 45, had been a financial adviser, and Mrs. Franks, 42, worked as a chef. But they were not happy and decided in

2000 that they wanted to open a restaurant in Maine, where they spent many vacations and married.

While they came to pursue the American Dream, they said, and wanted to become Americans, they are now fed up with what they see as an

arbitrary system that had allowed them to run a business for almost a decade until the day it did not.

“I can honestly see why people come into the country illegally, because to do it legally is almost impossible,” Mr. Franks said from Nova

Scotia. “They have tossed us aside like a used tissue,” he said.

They sought help from local politicians and started a letter-writing campaign. At the Web site E2Reform.org, they found other British citizens facing the same fate. Learning that some had successfully had their visas renewed at the American Embassy in Barbados, the Franks flew down there. But they had no luck and returned to Nova Scotia, where they sat out the winter.

In mid-April they decided to drive to the Maine-Canadian border, with a letter from their lawyer, Mr. Maranci, explaining their situation.

After two hours of questioning, they were allowed back into the United States for three months to wrap up their affairs.

They have put the restaurant and the adjoining house on the market for $399,000 and are also selling their home in Arundel, where they are

holding yard sales to get rid of their possessions and earn money for food, since they no have no income. “We can’t do anything until something sells,” Mrs. Franks said earlier this month, sitting at an empty table in the dim restaurant, where the plates, cups and cutlery were stacked by the counter. “All our money is tied up here and in our house.”

They find themselves without work, without an income and without a country. Gradually, they are emptying out their freezers and working

through their larder of cans of assorted foods, leading to what Mrs. Franks described as “some very strange dinners.” They worry that they

will not be able to sell their properties before their time expires, when they expect to go to Canada.

“I love America,” Mr. Franks said, but he has become embittered because their hard work and frugal ways seem to count for nothing. “You can go from ‘illegal’ to ‘green card holder,’ but we’re going from ‘legal’ to ‘no way you can get a green card,’ ” he said. “We did it wrong. If we came here illegally, we’d have a chance of becoming citizens.”

[Kathryn41 3,205]

It seems like USCIS is no longer content with not fixing what is broken, it is now breaking what works.

The above E visa was granted AFTER 9/11 so saying 9/11 may be responsible for increased scrutiny is a lame excuse. While the business wasn't bringing in high profits hand over fist it was supporting the owners plus employing 3 to 4 Americans, paid all of its expenses, all of its taxes and still turned a profit. It really does seem like the focus is increasingly on targeting immigrants, whether legal or not.

[Rhiannercakes 14]

That's just pathetic.

Why are they taking away visas for businesses that work and that put money into their economy?

It's not like it's a new business that has a high chance of shutting down in their first year, this one has been around 9 YEARS. It obviously works and the US government giving them a visa isn't a waste of anything.

I hope this changes :/

[JimVaPhuong 4,863]

It's hard to give an opinion, having only information from an journalist's interview with the visa applicants. It sounds like USCIS examined their financials and determined they didn't meet the requirements of generating substantially more income than is required to support themselves, or having a significant economic impact in the US. If they had gross profits of $38,800 then I would assume they paid their employees from those profits (else they would be NET profits). That wouldn't be enough to pay 3 full time employees at minimum wage. Unless they were one of the few employers in town, it would be hard to argue that they were making a significant economic impact.

If I were an adjudicator, I'd probably also conclude they came primarily to live in the United States rather than to make a substantial investment and oversee the development of an enterprise, which they themselves admitted in the interview. I would probably also conclude that their investment had become marginal (I might have made the same conclusion when they initially applied for the visa before coming to the US), and that they were making no significant economic impact. The few jobs they provided were almost certainly minimum wage, and probably not full time. I don't know about Maine, but many states require employers to provide health insurance and other benefits to full time employees. The fact that they are struggling financially now indicates their business did little more than support them and allow them to hire a few minimum wage workers. They didn't have enough profits to save any money, or reinvest it and grow their business.

I feel sorry for them because they established themselves in the US and put down roots, but the E visa specifically requires that the investor is coming solely to carry on substantial trade or direct the operations of the enterprise they establish. It's not intended to be a means to settle indefinitely in the US. It also requires that their investment does not become marginal. I think there's sufficient justification to say their investment was marginal.

[LIFE'SJOURNEY 970]

You are correct, if after 9 years and they have only $38,800 to report then this business is a failure. It looks as if they were using the business as a visa to staying in the US. They thought they had found a loop hole in the immigrations laws.

The purpose of the E-2 visa is to add to the US economic, with only $38,800 they could not have had any substantial employees in the business. They were only helping themselves.

Edited May 30, 2010 by LIFE'SJOURNEY

[Tick Tock 3]

I believe that the $38,800 was their profit for only one year, not the total profit over the course of the restaurant's existence.

I am saddened to read this story.

[john & jean 37]

illegal immigration is all that is news worthy anymore?

the ones that gave them the boot need to be investigated

[LIFE'SJOURNEY 970]

I believe that the $38,800 was their profit for only one year, not the total profit over the course of the restaurant's existence.

I am saddened to read this story.

This was a marginal business as was stated, if they only gross the amounts that were stated in the article and that is ONLY numbers, what we ALL have to go by. Then yes, this business would be considered a hobby by the I.R.S. standards.

[JimVaPhuong 4,863]

I believe that the $38,800 was their profit for only one year, not the total profit over the course of the restaurant's existence.

I am saddened to read this story.

Yes, that was their gross profit for the year, according to the article. I don't know how they determined this for the article. If it was from their tax return, then my previous assumption that they paid their employees out of this was incorrect. This would have been what they had left to live on AFTER all of their business expenses were paid, including employee wages. The article says their gross income was $64,000, plus $16,800 from property rentals, for a total gross revenues of $80,800. If you subtract their gross profit of $38,800, then they had $42,000 in business expenses, including employee wages. A liberal estimate would be that about half of that was spent on employee wages, and the other half on supplies to operate their business.

Sorry, but I don't think that's nearly enough money pumped into the economy to justify keeping 2 people on E visa status. The requirements of the visa are that their investment must be "substantial". Their gross profits barely qualifies them as a lower middle class household. I'd be surprised if they paid any income taxes at all.

[ValerieA 350]

However, they did inject money into the local economy, buying goods and services for their restaurant and for personal use. America isn't better off without them.

[Darnell 8,478]

The marginality requirement is fairly subjective

IMO, meeting of 'the requirement' is done on an individual case basis, and absolutely will shift, not only from year to year, but from case to case. It must be subjective, IMO, as the focus is on THAT case.

[Pooky 3,347]

This is Maine.

Last year, a $38,800 profit for their type of business was surviving, which is good for the state. I know Maine. Nothing is happening there. I have a number of friends who have been "let go" there in the past year. For USCIS to run a small business out of the country when it's still turning a profit is sad for the state. More so for Maine, where it is hard to turn a profit of any kind when the tourists don't show.

[Boiler 43,430]

I have followed this story.

If it was not clear she was the cook, he did the front of house. During their busy time they employed part timers to help out, I doubt if they ever had more than one working at a time. Basically a Mom and Pop business.

Sad, but others have said, not an eligible business for an E2.

[TBoneTX 43,057]

I've recently read at least one article about Mexican businessmen whose E-2 visa renewals were recently denied. It's happening in Texas as well as in Maine. If I find the article, I'll post it or a link to it, si man.

Edited to add: I expected to find it but could not, no man. It almost certainly appeared in the Monitor (McAllen, TX), the Brownsville Herald, or the Valley Morning Star (Harlingen, TX), si man (sister papers).

Edited May 31, 2010 by TBoneTX

[Boiler 43,430]

I have seen most from Florida.

Common factors seem to be a marginal business that the people concerned were not really interested in running, but the E2 was the visa of last resort for them to move to the US.