E-2 Visa: Matter of Kobayashi and Doi, 10 I&N Dec. 425 (District Director 1963; Regional Commissioner 1963; Deputy Associate Commissioner 1963)

May 25, 2018

 

 

Summary

 

Miss Kobayashi and Miss Doi were Japanese citizens in the United States who were seeking a change of status after their last extension of stay and applied for an E-2 visa under the argument that they were key employees of their employer, an E-2 visa holder that owned a business in Hawaii.

 

Facts

 

  • Miss Kobayashi and Miss Doi are to be the managers of the business’ Japanese dancing and arts department and the crew of wait staff, respectively.

  • Their employer, one Kiyoshi Sakurai, is a holder of the E-2 visa with a substantial business in Hawaii.

  • The applicants were applying for a change of status to an E-2 visa once their previous H-1 visa had expired.

 

Legal Analysis

 

Standard for Consideration

  • Treaty of Friendship, Commerce and Navigation between the United States and Japan, which allows for the nationals of each country to trade and invest within each others’ countries and to engage in professional services such as attorneys etc.

 

Standard for Denial

  • The applicants were found to not be deemed essential and to the professional nature stipulated by the Treaty.

  • The applicants’ skill set was deemed too narrow and thus did not meet the managerial or executive position needed to issue the E type visa.

  • The applicants were only making living wages and thus did not qualify under the E type visa’s requirement that substantial income must be made above a living wage.

 

Conclusion

 

The court found that the applicants’ appeal was unwarranted and did not issue a change of status for the applicants because they did not qualify as an E visa recipient because they did not (1) qualify as an essential employee in a managerial or executive position, (2) did not earn a high enough income from their business endeavor to be considered. For applicants to be considered for an E type visa, they must meet these criterias; the aforementioned applicants have failed to accomplish this and thus, their appeal has been denied.

 

 

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