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E-2 & EB-5; A Combined Strategy

Although the E-2 non-immigrant visa and the EB5 immigrant visa (green card) are completely different, it may make sense for some to consider a strategy that utilizes both.

The E-2 is a nonimmigrant investment-based visa that allows the investor to work for the US enterprise. An E-2 applicant must be a citizen of a country that is a party to a treaty that has an E-2 visa provision.  The US entity must be at least 50% owned by the investor or non-green card holding citizens of that country.  The US enterprise can be a franchise or any other type of for-profit business entity that requires a “substantial” investment to launch or acquire.  What is “substantial” is determined on a case by case basis but generally $100k or more should suffice although it is possible to obtain an E-2 with less.

Once the US entity is established and funded, the applicant can make her application with the US Consulate in her home country.  Most US Consulate schedule E-2 visa appoints in about 2 months but we have recently seen some Consulates scheduling 3+ months out.  E-2 visas are are generally issued for 3 or 5 years. Upon each entry, an E-2 non-immigrant will be admitted into the US in E-2 status for 2 years. E-2 status and the actual E-2 visa can be extended indefinitely, for as long as the enterprise continues to qualify.  One can conceivably obtain an E-2 visa and enter the US in as little as a few months.  The E-2 is not designed to be a stepping stone to a green card. That said, there is no prohibition on an E-2 nonimmigrant from pursuing a green card. Enter EB5!

Although there might be several ways for an E-2 nonimmigrant to achieve a green card, this writing will discuss EB5 as it too is investment based and allows for self-sponsorship (not needing a US company to serve as a sponsor).  EB5 is the 5th employment based green card category. There are 10,000 EB5 green cards available for issuance each fiscal year (October 1-September 30). No single country can get more than 7% (700).  When demand exceeds supply, a queue is formed the length of which varies depending on the demand for specific countries.  For example, it is estimated that an EB5 applicant born in China filing today will have to wait 15 years or so. An Indian born applicant might have to wait 8 or so years.  So, depending on when an applicant will ideally like to be physically present in the US, a strategy of either just EB5 or an E-2 and then EB5 might be worth considering.

Designing a short- and long-term strategy to meet the needs of an applicant is critical.  It is highly recommended to consult with experienced immigration counsel to go over objectives with a view to coming up with a sound game plan to meet the objectives of the applicant and her family.  Our team has vast experience in not only achieving employment authorized nonimmigrant status for clients but in then converting it to the permanent green card.

On November 21st, 2019, the new regulations came into force, which includes the increase in the minimum investment amount to be $900,000 for TEA approved projects and $1.8 Mn for Non-TEA projects. Please consult your immigration attorney or LCR Commercial Representative for further information.

About Mitch

Mitch Wexler is a partner with Fragomen, the leading immigration provider in the world. He manages the firm’s Los Angeles, Irvine and San Diego offices and sits on the firm’s Executive Committee.  He and his team handle immigration cases for individuals, families, and designs and executes immigration programs for small & large companies. He can be reached at mwexler@fragomen.com

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EB-5 Program Update:

The EB-5 Program has lapsed. The US Congress is discussing the legislation that authorizes the program while USCIS reviews the regulations and policies for filing. Because of the recent court ruling that reversed the 2019 Modernization regulations, the investment level has shifted temporarily from $900,000 back to $500,000.

If the program is reauthorized before the regulations are updated, there may be another window of opportunity to file at $500,000.

LCR expects the program to be reauthorized in February 2022, and continues to work with international families that want to explore alternative residency options.

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