Adjudications Officers (AO) at USCIS who work in the
specialty Investor Program Office (IPO) in an office in
Washington, DC. It matters.
Consular Officers are members of the “Foreign Service.”
They often consider their service to be the most selective
and therefore superior institution in the U.S. government.
They specialize, by a function of their posting, in the country
in which they serve. USCIS adjudicators are usually G-13
or G-14 level civil servants, which normally are reserved for
top-level positions such as supervisors and specialists.
The workforce at IPO is diverse, but the individual AO may
not have any familiarity or commitment to the country of an
applicant’s origin.
Regardless of bragging rights and pay scale, there are other
differences in the adjudicatory contexts for E-2 and EB-5
visas that a conscientious attorney or consultant should
explain to the prospective applicant.
CONSULAR PROCESSING: WHAT COULD
GO WRONG DURING AN INTERVIEW?
Most visa applicants are interviewed eventually. However,
when an EB-5 applicant appears for an interview overseas,
the applicant already has an approved I-526. EB-5 consular
processing does not normally involve a de novo review.
Consular Officers defer to USCIS’s findings regarding the
applicant’s right to the immigration status, and focus on
identity and admissibility. While there have been some
reports of Consular Officers delving into the merits of
I-526s, they are generally instructed to do so only in cases
of suspected fraud.
Consular Officers interview E-2 applicants regarding
the substantive contents of the application. Many of the
requirements listed in 9 FAM 402.9-6(A) are all up for
discussion at the interview, and no amount of clever legal
drafting can save a poorly prepared applicant if he or
she cannot demonstrate mastery of the business plan.
Because Consular Officers live and work abroad, they may
have contextual knowledge unavailable to the consultant
or attorney advising an applicant. They can use that to
probe the motivation of the applicant, sometimes to the
applicant’s peril.
The fact is, the applicant’s future can be decided during an
interview in a matter of minutes, notwithstanding hours of
quality legal work and business plan drafting that precedes
it. Preparation for consular processing is much more
important for an E-2 than an EB-5.
CONSULAR OFFICERS REVIEW
THE MERITS OF E-2 IN A HURRY
The sheer volume of visa adjudication at consular posts,
together with the turnover at consular posts can be
problematic.
The State Department issues an alphabet soup of visas,
but the big one is the B1/B2. The Department’s Visa Office
104 EB5 INVESTORS M AGAZINE
reports that in fiscal year 2017, over 9,68 million visas were
adjudicated. Over 7 million of them were some combination
of B1, B2, or border crossing cards. Only 43,671 E-2 visas
were issued worldwide – less than 0.5 percent of the total.
When I served as a U.S. Consular Officer in Bogota between
2010 to 2012, the post routinely processed 2,500 visas per
day, distributed among 15-20 “line officers.” Consequently,
100-130 interviews per officer per day was the norm. The
vast majority were B1/B2 visas. According to the Visa
Office, not much has changed. In fiscal year 2017, some
346,775 nonimmigrant visas were issued at Bogota, of
which only 524 were E-1 or E-2s and their derivatives.
Applications outside the norm are not always welcome
additions to a Consular Officer’s workload. The adjudication
of an E-2 visa can be a major inconvenience for a Consular