News & Insights

Facts and Circumstances

Egil Lauvik invested $150,000 in a motel/trailer park business in Washington State, which he managed personally. The Immigration and Naturalization Service (INS) initially approved his application for E-2 treaty investor status and later extended it for one year. However, his request for a second extension was denied. INS argued that Lauvik did not intend to leave the United States upon the expiration of his status and that his activities in the U.S. did not align with the legal definition of a treaty investor.

INS based its decision on several factors:

• Statements on Application Forms: Lauvik’s initial application indicated a desire to immigrate to the U.S. and gain citizenship, which INS interpreted as evidence of a permanent intent.
• Nature of Work: Lauvik’s self-described duties at the motel/trailer park, which included manual labor and repairs, suggested to the INS that he was functioning as a skilled or unskilled laborer rather than directing and developing a business.
• Financial Dependence: INS concluded that Lauvik’s investment in the U.S. was his primary source of income, further casting doubt on his temporary intentions.

In response, Lauvik provided evidence of substantial property holdings and investments in Norway, arguing these demonstrated his intent to return if required. He also claimed that language barriers and lack of legal counsel led to misinterpretations in his application forms.

Court’s Decision and Reasoning

The Ninth Circuit Court of Appeals reversed the district court’s grant of summary judgment in favor of the INS, holding that the INS had abused its discretion in denying Lauvik’s extension of treaty investor status. Key points of the court’s reasoning included:

• Misinterpretation of Intent:
  • The court emphasized that an expressed desire to remain in the U.S. permanently, if legally permitted, does not inherently negate an intent to depart upon the expiration of lawful status. It cited prior case law affirming that hope for a permanent stay is not equivalent to intent to stay unlawfully.
  • The court acknowledged Lauvik’s explanation that his use of the term “immigrate” stemmed from linguistic misunderstandings, not an actual intention to breach immigration laws.
• Evidence of Temporary Intent:
  • Lauvik’s substantial assets in Norway, including a furnished home, a waterfront property, and financial investments, supported his claim of intending to return if necessary.
• Application of Precedent:
  • The court criticized the INS for disregarding established precedent affirming that a desire to remain, if legally possible, does not preclude non-immigrant status. Cases like Bong Youn Choy v. Barber and Brownell v. Carija were highlighted as supportive authority.