Understanding Options Between EB-5 and E-2


Posted on 06/20/2018 by Mark A. Ivener, A Law Corporation

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With the current EB-5 backlog in China, we are seeing a lot of new interest in the Grenada E-2 visa for Chinese nationals. With that in mind, this article seeks to explain the differences between these two investor visas.

Differences between Green Card & Visa

The EB-5 visa, once fully processed provides investors with a Green Card. The E-2 visa, on the other hand, only provides a visa. The E-2 visa has the longest nonimmigrant visa validity and, in some ways in the most advantageous U.S. visa. With an E-2, investors can get their children into public or private schools, as well as university. However, single children’s E-2s expire at the age of 21. It also does not provide a clear path to a Green Card and U.S. citizenship. If you are looking to gain full U.S. citizenship, the EB-5 program is still the best approach.

Basis of quota and eligibility

EB-5 is available to people born in any country. There is a yearly quota of 10,000 on EB-5 acceptances based on a person’s country of birth (i.e., not country of citizenship), which can cause issues for petitioners from high volume countries like China, Vietnam and India.

E-2 visas are only available to individuals from countries engaged in investment treaties with the United States. China does not have this type of agreement with the U.S., so Chinese citizens are ineligible for the E-2 visa unless they become citizens of a treaty investor country such as Grenada where a passport can be obtained in about 4-6 months through an investment of at least $400,000.

Processing Times

E-2 has no quota and, therefore no backlog. Because of this, E-2 visas can usually be obtained within 2 months, whereas China EB-5 processing times are currently more than 10 years.

U.S. Taxes

E-2 visa holders are able to use particular U.S. immigration and tax laws to not be taxed on worldwide income by remaining below the annual threshold for days spent in the U.S. EB-5 Green Card holders, just like any other Green Card holders, are required to pay taxes on worldwide income.

Requirements

EB-5 requirements are very stringent. At present, an EB-5 Green Card seeker must invest at least $500,000 in a U.S. based project, and must prove their source of funds and that their investment created at least 10 full time jobs in the U.S.

E-2 requirements are significantly more flexible. This visa requires a ‘substantial’ investment. The actual amount required is based solely on the requirements of the investee business. Though most E-2 investments still exceed $100,000, there is no set amount required for individuals pursuing this visa.

Similarly, job creation requirements for E-2 are generally in excess of 2 full time employees, based on the actual investment being made. An E-2 investor must invest in a business that actually employs people. But, in line with the investment requirement, the actual job creation requirement is based on the business operations.

At present, the main requirement for E-2 investors is that they show a sound business plan that is likely to succeed, though one can’t invest for their sole support.

Filing

Unlike EB-5 petitioners, E-2 visa seekers are not required to file an application with U.S. Citizenship and Immigration Services (USCIS). E-2 applications are primarily filed directly at a U.S. Consulate in a visa seeker’s country of birth, country of citizenship, country of residence or any consulate that is willing and able to take the case.

This does mean that interviews at the U.S. Consulate for E-2 petitioners are critical for approval, so it is important to prepare extensively for these interviews.

EB-5 petitions are only processed through USCIS, which creates substantial processing delays and currently averages 22 months.

Business Ownership

The E-2 visa is only available to people who own at least 50% of the investee business. There is a special skills and managerial E-2 visa that may be available to individuals working in a business that is majority owned by people from their own treaty country.

EB-5 does not require any particular ownership structure, so long as the investment and job creation requirements are met.

Required time in U.S.

Green Card holders are required to reside in the U.S. This generally means that one should spend at least 50% of their time in the U.S. If this is not done, a permanent resident may be required to get a Re-entry Permit to allow them to stay out of the US more than 6 months in any given year while ensuring that they maintain their permanent resident status.

E-2 visa holders do not have these same restrictions. An E-2 visa holder can reside in the U.S. for as much or as little time as they please. E-2 visa holders can even reduce taxation by spending a greater amount of time outside of the U.S. All tax questions should be given to an experienced international tax attorney.

As is evident from the above summary, each program has its own benefits and drawbacks. If you are thinking about entering the U.S. through an investor program, we strongly recommend speaking to an experienced immigration lawyer to get sound advice.

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