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How to Obtain Permanent Residency by Transitioning From the E-2 Treaty Investor Visa to the EB-5

On Behalf of | Aug 17, 2016 | EB-5

EB-5 Immigrant Investor Program, a pathway to U.S. Citizenship.

Visa applicants sometimes apply for an E-2 visa with the intent to eventually transition to an EB-5 Visa. There are a variety of reasons why an applicant may want to do this, but let us first look at the differences between an E-2 visa and an EB-5 visa.

E-2 Non Immigration Investor Visa

An E-2 visa is a non-immigrant visa, based on a bilateral treaty between the United States and another country, that allows an investor or other essential worker to be admitted to the United States in a supervisory or executive capacity, or possess highly specialized skills essential to a US business. The foreign national must be of the same nationality as the company’s principal owner. An E-2 visa can generally be renewed every few of years for as long as the business thrives. But, while there is no limit to the number of times an E-2 visa can be renewed, it does will not directly lead to permanent resident status or to U.S. citizenship.
There is no stated minimum investment requirement nor minimum number of jobs that must be created for an E-2 visa, however, an investor is required to invest what is considered to be a substantial amount of money with regards to the total amount needed to start the business, and to generate income in excess of that which is simply needed to sustain the investor and his or her family. That being said, an investment of $10,000 to start a restaurant probably will not qualify you for an E-2 visa. As a general rule, most EB-5 lawyers advise their clients on the need to invest a minimum $100,000 to qualify.

EB-5 Immigrant Investor Visa

The EB-5 visa grants permanent residency status from the start, assuming that the investor meets all of the qualifications set forth by the USCIS. While an EB-5 visa is open to foreign investors from any country, he or she must invest at least $1,000,000 in a new commercial enterprise that will create a minimum of 10 full-time jobs in the United States within two years of the visa being granted. If the investor chooses to invest in a Regional Investment Center or a Targeted Employment Area, the minimum investment required to qualify is only $500,000.

The initial EB-5 visa is conditional, meaning that the permanent resident status conveyed is only valid for two years. At the end of this two-year period, the investor will be required to file additional documentation to show that he or she still maintains their investment and that it has met all of the requisites set out by the USCIS. Assuming that all additional requirements are met, the investor’s conditional permanent resident status will then become a true permanent resident status and from there they are on the road to citizenship.

Why Start With an E2-Visa?

There are a few key reasons why an investor, whose goal is to eventually apply for permanent resident status through an EB-5 visa, would want to start with an E-2 visa. These reasons are as follows:

1. The investor may not have the minimum $500,000 EB-5 funding needed to qualify for an EB-5 visa.

2. Source of funds may be easier to prove with an E-2. Both an E-2 visa and an EB-5 visa require the investor to prove that the funds they are investing come from a “legitimate source” and that they were “obtained through lawful means.” However, for an E-2 visa, an investor may only need to invest as little as $100,000, the source of which may be a lot easier to document than the $1,000,000 or $500,000 needed for an EB-5 visa.

3. Obtaining an E-2 visa is much faster. It can take as long as 36 months to qualify and obtain an EB-5 visa. On the other hand, an investor usually obtains their E-2 visa in under three months.

There are also a number of factors that may motivate an investor to transition from an E-2 Visa to an EB-5 visa after the E-2 visa has been obtained, for instance:

● The holder of an E-2 visa must work in the enterprise for which the visa was created. This can be restrictive in terms of choice of school, other occupational opportunities, and/or retirement. On the other hand, a holder of an EB-5 visa is free to work, study or retire whenever and wherever they desire as long as while they enjoy conditional permanent residency, they are at least a limited partner or director of the enterprise for which the visa was granted;

● Because the E-2 investor have children who are approaching 21 years of age. An E-2 visa holder may sponsor his or her children for E-2 visas until they turn 21 years of age. After turning 21, they must leave the country or seek a change of status that would qualify them to remain in the country. An EB-5 visa filed before the child turns 21 allows the children of the visa holder to directly immigrate to the United States with them.

Transitioning From E-2 to EB-5 Visa

In order to transition to an EB-5 visa after being admitted to the country on an E-2 visa, the investor may need to raise the level of his or her investment in the E-2 enterprise to meet the EB-5 funding requirements (currently $500,000 or $1,000,000) and show how this increase in capital investment will generate the 10 U.S. jobs needed to meet the EB-5 requirements.

While, at first glance, this may seem simple enough, it must be done carefully from the outset, especially as it pertains to meeting the EB-5 funding and job-creation requisites. Retained earnings generated by the E-2 enterprise are not allowed to be used to meet the investment requirement. Also, the investor must be able to prove that ten new jobs have already been created or will be created before the expiration of the two-year conditional permanent residency that will be granted.

Contact a Qualified and Experienced EB-5 Lawyer

Transitioning from E-2 visa to an EB-5 immigrant investor visa will require the expertise of a qualified EB-5 lawyer who is experienced in handling both E-2 and EB-5 visas. Investors should also be aware that the EB-5 program may be expiring soon. So, if you are truly interested in transitioning from an E-2 visa to an EB-5 visa, you are encouraged to contact a qualified EB-5 Lawyer at +1- or visit us online to schedule a consultation today.