E-2 As a Long Term Option to Immigrating by EB-5 to the US

Posted on 08/21/2018 by Mark A. Ivener, A Law Corporation

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Over the past few years there have been a lot of changes to EB-5 that have made it a more difficult program for many potential immigrants to use. A few of the biggest issues we are seeing from many potential clients are:

  1. They feel that the current EB-5 quota backlog time for their country, especially China, is too long to be reasonable and investors are unwilling to wait 15 plus years to move to the US.
  2. Seeing USCIS processing times continuing to increase, these potential EB-5 applicants are put off because they feel they don’t have clarity on whether their processing times will increase.
  3. EB-5 minimum investment amounts may increase in October, making the program unaffordable for some potential investors.

With this in mind, we think it is helpful to review the E-2 visa program as a potential alternative to EB-5.

E-2 is an investor visa with a few key benefits versus EB-5:

  1. The visa usually has a 5-year issuance, with further extensions after the first 5 years if the investor’s business is still operational and has employees.
  2. E-2 visas can generally be processed in as little as 2 months.
  3. The children of an E-2 visa holder can go to school in the US; the spouse of an E-2 visa holder can get a work permit in the US.
  4. It is possible, through US time management, to avoid taxation on worldwide income.
  5. The E-2 visa does not require an application to USCIS; applications are usually made at a US Consulate or Embassy.

The main challenge for the E-2 program is that it is only available to investors who hold nationality in an E-2 treaty country. Since large countries such as China, India and Russia are not treaty countries, this can pose an issue for people from these countries who would be good candidates for E-2.

One of the most viable workarounds for many potential E-2 investors is obtaining nationality in Grenada, and then using that nationality to apply for an E-2 visa. At present, Grenada allows foreign investors to obtain Grenadian nationality if they invest between $200,000 and $400,000. The process takes around 4 months and, once completed, enables investors to begin the E-2 process from Grenada or their country of residence.

Beyond nationality in a qualifying treaty country, an E-2 investor must be able to show that:

  1. They have invested in and own at least 50% of a US business, or are in the process of making an investment in a US business. This investment must be ‘at risk’, but can be made in a new business, a franchise, or the purchase of an existing business.
  2. The investee US business must be real and active.
  3. The investment must be substantial enough to allow for the development of the business. There is no minimum investment requirement for E-2, but it is imperative that an investor shows that their investment (usually in excess of $100,000) is sufficient to support the development of a successful business.
  4. The business must be able to create and sustain jobs beyond those created for the investor, usually 3 or more.
  5. The investor must play a direct role in the management and operation of the business.
  6. The investor must own at least 50% of the business, usually they must be a majority owner.
  7. The investor must show that they have intent to leave the United States at some point. E-2 does not allow for permanent residency, so E-2 investors must be able to show that this is not their intention.

If you are interested in pursuing a 5 year renewable E-2 visa or US Green Card through the EB-5 program, we strongly advise the employment of an experienced immigration lawyer to guide you through the oft-changing regulatory environment. Mark Ivener is an E-2 and EB-5 expert with over 40 years’ experience guiding investors through this process.

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