A couple who run a restaurant in Massachusetts had their visa revoked. The couple, Ibonne Zabala, of Colombia, and Oleg Konovalov, from Russia, had a trendy bistro, French-South American cuisine of all things, and have been living in the U.S. on an E-2 Investor visa for years.

The E-2 visa was created for non-immigrant aliens to invest and manage (this is important), a profit making enterprise that has significant economic impact (this is important as well). According to the Department of State (DOS), the impact of the investment must be significant.

The Boston Globe February 22, 2012 by James H. Burnett III

The Story Behind Bon Savor’s Closing

The little Jamaica Plain bistro chugged along after its popular owners went to Bogota on vacation and were prevented from reentering the country. A neighbor restaurateur is opening a spot in the space. Former customers and locals are puzzled and wonder.

What happened to Bon Savor, the popular French-South American bistro that occupied the space for six years until abruptly closing a few months ago? And what happened to Ibonne Zabala, 36, and Oleg Konovalov, 42, the always smiling couple who owned Bon Savor?

Some answers are easy to come by, others remain elusive. But the story that has emerged is a tale of what can happen when the challenges of running a business collide with the complicated rules of immigration visas. Even as Bon Savor’s old space is being prepped to open as the Grass Fed Burger Bar, http://www.bonsavor.com/ continues to live on the Internet without a hint of the restaurant’s demise.

Bon Savor’s slow death began in September 2009, when Zabala, Konovalov, and their baby son flew to Bogota to see her family. Those who know the couple say they had reviewed their paperwork to make sure everything was current, and they had every intention of returning.

And of significant import:

But when they attempted to fly back two weeks later, Zabala and Konovalov learned from the US Embassy in Bogota that their visas had been revoked because they had failed to maintain the requirements of the documents.

Revocation of a non-immigrant visa by the DOS is extremely rare. In days gone by, almost impossible to do. I cannot say how many times I was told by a DOS employee or Consular Officer that they do not revoke visas. Though this article also suggests that the couple may have been re-applying in Colombia. No need to check your visa, cross the "t"s and dot the "i"s if your visa is still valid and you are just taking a short trip outside the U.S. Methinks they were renewing in Bogota. The E-2 visa allows the holder to depart and enter the U.S. without restriction. This is more a comment on the lack of ability of the reporter than the issue at hand, but if the visa was revoked rather than a renewal denied, that is significant.

The US Department of State declined to comment about Zabala and Konovalov’s case. But an aide for US Representative Michael Capuano, whose office was contacted by Jamaica Plain activists on the couple’s behalf, confirmed that Zabala had an “E2 Investor’’ visa, or what some people casually call a “job creator’’ visa. Konovalov had an accompanying spousal visa (he is from Russia, and attended Harvard Business School), and their son, born in Boston, is a US citizen. Under the requirements of an E2 Investor visa, recipients are required to make a “substantial’’ business investment that they will control or operate and grow while living in the United States.

According to Margaret Holland Sparages, the Boston immigration lawyer who represented Zabala and Konovalov, Zabala’s E2 visa had just been renewed for a second five-year term when the couple flew to Colombia to have their son baptized and visit with her family.

Curious that it had been renewed over a ten year period, but not unusual. Sometimes renewals just don't get the attention they deserve. And if they applied to extend their stay in the U.S. or adjusted from another status to that of E-2 in the United States through U. S. Citizenship and Immigration Services (USCIS), then that might explain things. Even more curious is that AmEmb Bogota happened to know they were in Colombia for a baptism and just happened to inform them that the visa was revoked.

But back to the visa itself. The E-2 requires substantial investment that provides more income than just to support the investors:

The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.

The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.

And the principals must be management, not supervisory or perform the work normally assigned to employees:

The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

Note that supervisory, executive, or highly specialized skilled employees on the E-2 are employees of the principle E-2.

What may have occurred here is that the couple were not just owner-managers, but actively worked in the enterprise as cooks, hostesses, etc. Typical of a small business, nothing wrong with that, but the E-2 is not for the family run level restaurant or business. Perhaps during new application for the new E-2 visa the Consular Officer reviewing the application discovered that the single site restaurant was a marginal business.

From the story:

Michael Sandberg and his wife live in Newburyport, but they frequented Bon Savor for Sunday morning brunch. At that point, Sandberg says, the restaurant employed four cooks and three servers, a tidbit he learned after talking to a manager. “It is ironic that actual ‘job creators’ were not allowed to come back and continue their job creation, and now seven more people are out of work,’’ Sandberg says.

That is close to marginal. Most high end single-site restaurants with significant investment have many more employees. I am also thinking that the couple actively participated in the lower end of the work scale at the restaurant. Seven employees is not much.

But there appears to be a significant difference on how the Consular Officer AmEmb Bogota views things and how the USCIS in Honolulu views the law.

In Honolulu the large hotels are filled with tourist trap specialty stores in their lobbies. But a frequent visitor to Waikiki would notice that those retail enterprises are open odd hours, odd meaning they are hardly open at all, their pricing structure is oddly high end, and even when open, are devoid of most commerce. One comes to think that Poi Dog apparel was created just for fraudulent E-2 visa holders. And they are staffed by mostly non-English speaking Korean and Japanese women who spend all their time on the phone, when they bother to open. And most of these are the so-called investment by an E-2 from Korea or Japan. Another bogus investment is the travel agency, one man shops run out of homes or Internet only. Personal experience has shown that bogus retail and marginal one or two person travel agencies are the norm for E-2 visa holders in Honolulu and other parts of Oahu and other Hawaiian islands. Many, if not all, entered the U.S. on another status and adjusted to E-2 through USCIS. And, of course, neither U.S. Immigration and Customs Enforcement, nor USCIS, do anything about these marginal if not outright fraudulent enterprises that produce E-2 "investors."

Perhaps Zabala and Konovalov should try again in Honolulu. It is certain USCIS will have no problem with their slightly more than marginal investment. But then again, they aren't Korean or Japanese. USCIS in Honolulu is run by a Japanese "mafia."

It is sad though to see apparently productive non-immigrant immigrants, that is actually what both the E-1 and E-2 visas are, lose out, especially given the rampant fraud tolerated, if not encouraged, in other parts of this country. Our immigration system truly is broken. But perhaps because Hawaii is only tentatively connected to the rest of the United States. The Japanese elite there do things for their own benefit and that of their fellow countrymen, not of or for America. The Japanese have finally won the battle of Pearl Harbor and they won it with fraudulent E-2 visas.