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Future Immigration: Guilty until proven innocent, my story.

Future Immigration: Guilty until proven innocent, my story.

The first thing you learn about embassy staff is their special skill is that you cant read them, no facial expressions, no interaction just hard cold questions. I have to give them credit for this because I imagine given the nature of the job its actually very hard to deliver life changing bad news to people every day, I just did not expect it to be my day.

I explained that I had gone to the USA I was starting a company and I wanted the visa so I could get the business up and running. This was my first rookie mistake I should have said “researching” starting a company, but in truth the real rookie mistake I made was not hiring a visa lawyer from the first moment I considered staying in the USA. It was my naive belief that given the ‘special relationship’ we are supposed to have with the USA, my extensive history of entrepreneurship and the fact that I had advised the White House would mean that just getting a simple 6 month visa would be child’s play.

So when the consulate office passed me the ‘green sheet of death’ saying that my visa had been denied because I had already started the process of setting up a business I was shell-shocked.

I stumbled out of the embassy into the early morning brightness, my usually focused and problem solving brain had become a jumbled mess of goo that was serving me no better than a drunk bartender. Over the next few minutes my brain started processing the various options, do I reapply, change my visa class, give up on America, what can I do?

I knew that it was very unlikely I would be able to reapply, changing to another visa would take at least 3-6 months and giving up on anything for me is not an option especially as I had already invested a lot of time and effort into planning my next company.

There was one option left it was a long shot but it could just work, within 30 minutes of leaving the embassy I had booked a flight to New York for that afternoon not knowing if I would be allowed across the border, but it was worth the risk.

I knew that as long as I had a valid ESTA(basically an electronic visa waiver program) I could still travel to the USA even though there was a significant chance that they could turn me away at the border.

As I got on the flight that afternoon I had no idea if I would be able to return back to the place I had called home for the last year, the stress of the situation was tremendous and one of the most nerve racking flights on my life.

I cant describe the feeling of turning up on foreign soil and feeling like you should not be there, and as I made my way towards the immigration hall my heart was pounding. It was very late and probably last flight of the night to enter JFK, this worked in my favor as I approached an almost empty immigration hall a few overworked border officers looked tired and ready to go home. I walked confidently up to the window expecting a barrage of questions. Stamp, Stamp, Stamp went his little hand, no questions, passport in hand I walked quickly away trying to hide the huge grin that had appeared on my face.

At this point you would think I would have hired a lawyer, but oh no in true Ben “I should be able to do this myself” style I set about researching, evaluating and deciding my various options. I like to say options but there were not really that many to decide from my only options were the O1 “Alien of exception ability” which sounds a bit like ET on steroids or the E2 which is an Investor Visa. Given that I was already in the process of starting a company the E2 sounded like the option for me.

As with many things in US immigration there is a huge amount of grey areas when it comes to specifics of what an applicant is supposed to provide. The biggest question with the E2 was how much do you need to invest in a company to qualify? After researching it looked like anything over $100K would qualify so I duly transferred $150K into my identity checking company and started to build a business knowing that I had three months until my VWP ran out. I got offices, I employed Staff, built the technology and wrote a business plan to be proud off.

The application containing over 300 pages of information was sent to the embassy, everything from photos of the office to employee paystubs, I was ready, the visa date was set and I returned to London confident in my return.

When I approached the embassy this time it was with more foreboding, long ago had the feelings of pride and honor associated with my involvement with the embassy disappeared. I entered, I sat and I waited. When my number was called I was expecting a grilling and that is just what I got. Ten minutes in and he tells me that he is rejecting my application on something called ‘substantiality’.

Again my heart dropped, not just because of the visa but the months of work I had put into making the application perfect. The visa officer explained to me that even though I had invested $150K I had not spent enough of the $150K in 3 months to justify the visa. This presents the exceptional challenge of the chicken and the egg problem in immigration, I need a visa to make my business substantial, but you wont give me a visa because my business is not substantial enough. Clearly they had never heard of the lean startup, I was told later by my lawyers that the treaty for the E2 was written in 1815 and that it was designed more for the time when you were buying printing presses rather than high tech digital startups.

Even though I was very disappointed I was at least more confident I could still return under ESTA so a few days later I flew back to Florida. This time I was hauled into the back office, the interrogation unit, and while it was not quite rubber gloves I knew my days were numbered, they let me through this time, but I knew they would not again.

I had three months, so at this point with all my own options used up, I hired a lawyer for the princely sum of $6000 for something I felt that as a human being I should be able to do without problem.

Given the history of my case there was only one thing left “Alien of Exceptional Ability” the hardest of all the visa categories to get, this thing usually reserved for film stars or noble prize winners(this is actually a specific provision!). You have to hit three of eight criteria, I wont bore you with the specifics but ultimately I qualified for 7 out of the 8 criteria with some stronger areas and some weaker areas. Given my background, my fondness for appearing on TV and in print and having won a few awards my visa lawyers were confident that I qualified.

So yet again I started compiling information, the bar was even higher, 5 personal recommendation letters from famous people I knew, every single piece of media I had been in for ten years, every single part of my life laid bare. The 27 years of my life put down on paper consisted of over 500 pages of information, which for anybody who is going through a similar process can be seen here(around two hundred pages redacted for privacy).

Ben Way visa/credential pack

This was my last chance, I submitted my documents to USCIS(these are the guys that authorize you to work but are separate to the consulate visa process) and with my expedited process I received confirmation of my O1 status in less than 10 days. Oh the joy! Oh the wonderment! Oh No.

About Ben Way

Best Selling Author, Entrepreneur, Inventor, Futurologist and Philanthropist based in Silicon Valley.


  1. I feel for you, I really do. But try navigating the soul-crushing UK Home Office as a foreigner wishing to work/start a company in Britain and you'll see that it's reciprocal 🙁

  2. Truly incredible story and thanks for sharing!

    My dad received a phD scholarship to UCSD so I was able to ride his immigration coattails and gain citizenship. I can't imagine how difficult it must be for a young entrepreneur to not only gain access to the States but remain here for over a year. Congrats on your second chance.

    Cheers to your success!


  3. I had almost the exact same journey as Ben. Mine ended differently. I am now busy boosting the GDP of another country and it's not China.

  4. Are you trying to set up a company and immigrate to the UK? I can help you with that if you need some guidance.

  5. Candace Lafleur Thanks so much! You actually did give me some great advice a few years back when we were looking at our visa options 🙂

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