EB-5 Investor Visas Versus E-2 Entrepreneur Visas

EB5 and E2 Visas Compared

Advantages of E-2 Treaty Investor Visa

Investment required must only be "sufficient" and the business "non-marginal".

It is commonly understood that investments of less than USD $100k will be subject to more intense scrutiny -- however we have had success with applications under this amount.

The "non-marginal" requirement means that the business should expect to create more than just a subsistency income for the owner's family. The goal is to create wealth that spreads to potential US employees, and perhaps eventually other US investors and shareholders.

 

The E-2 visa holder's spouse may apply for work authorisation, which will be applicable for any job they can find -- not just working for the visa holder's (family) business.

 

 

In most states, children of E-2 visa holders qualify for free or in-state tuition rates at state universities until they are 21 or cease to qualify as E-2 dependents.

For most, this will be long enough to graduate from a four-year US university.

 

Holders may re-enter the US so long as the E-2 visa remains valid.

The E-2 visa is referred to as a 'treaty investor' visa because it is underpinned by bi-lateral treaties with friendly US trading partners.

Here is the complete E-2 reciprocity schedule, including the maximum number of years a visa can be issued per eligible country, and how many times the visa may be renewed:

United Kingdom (5 Years, Multiple)

Albania (3 Years, Multiple)
Argentina (5 Years, Multiple)
Armenia (5 Years, Multiple)
Australia (4 Years, Multiple)
Austria (5 Years, Multiple)
Azerbaijan (3 Years, One)
Bahrain (3 Years, One)
Bangladesh (3 Years, Two)
Belgium (5 Years, Multiple)
Bolivia (3 Months, One)
Yugoslavia: Bosnia and Herzegovina (1 Year, Multiple)
Bulgaria (5 Years, Multiple)
Cameroon (1 Year, N/A)
Canada (5 Years, Multiple)
Chile (5 Years, Multiple)
Taiwan (5 Years, Multiple)
Colombia (5 Years, Multiple)
Congo (Brazzaville) (3 Months, One)
Congo (Kinshasa) (3 Months, Two)
Costa Rica (5 Years, Multiple)
*Yugoslavia: Croatia (5 Years, Multiple)
Czech Republic (5 Years, Multiple)
Denmark (5 Years, Multiple)
Ecuador (3 Months, Two)
Egypt (3 Months, One)
Estonia (5 Years, Multiple)
Ethiopia (6 Months, Multiple)
Finland (2 Years, Multiple)
France (5 Years, Multiple)
Georgia (1 Year, Multiple)
Germany (5 Years, Multiple)
Grenada (5 Years, Multiple)
Honduras (5 Years, Multiple)
Ireland (5 Years, Multiple)
Italy (5 Years, Multiple)
Jamaica (5 Years, Multiple)
Japan (5 Years, Multiple)
Jordan (3 Months, One)
Kazakhstan (1 Year, Multiple)
Korea (South) (5 Years, Multiple)
Yugoslavia: Kosovo (1 Year, Multiple)
Kyrgyzstan (3 Months, Two)
Latvia (5 Years, Multiple)
Liberia (1 Year, Multiple)
Lithuania (1 Year, Multiple)
Luxembourg (5 Years, Multiple)
Macedonia, The Former Yugoslav Republic of (FRY) (5 Years, Multiple)
Mexico (1 Year, Multiple)
Moldova (3 Months, Two)
Mongolia (3 Years, Multiple)
Yugoslavia: Montenegro (1 Year, Multiple)
Morocco (5 Years, Multiple)
Netherlands (5 Years, Multiple)
Norway (5 Years, Multiple)
Oman (6 Months, Multiple)
Pakistan (5 Years, Multiple)
Panama (5 Years, Multiple)
Paraguay (5 Years, Multiple)
Philippines (5 Years, Multiple)
Poland (1 Year, Multiple)
Romania (5 Years, Multiple)
Yugoslavia: Serbia (1 Year, Multiple)
Senegal (1 Year, Multiple)
Singapore (2 Years, Multiple)
Slovak Republic (Slovakia) (2 Years, Multiple)
*Yugoslavia: Slovenia(5 Years, Multiple)
Spain (5 Years, Multiple)
Sri Lanka (3 Years, Multiple)
Suriname (5 Years, Multiple)
Sweden (2 Years, Multiple)
Switzerland (4 Years, Multiple)
Thailand (6 Months, Multiple)
Togo (3 Years, Multiple)
Trinidad and Tobago (5 Years, Multiple)
Tunisia (5 Years, Multiple)
Turkey (5 Years, Multiple)
Ukraine (3 Months, Two)
United Kingdom (5 Years, Multiple)

Disadvantages of the E-2 Visa:

E-2 visa renewals are generally denied if the business is borderline successful or struggling.

Anecdotal evidence suggests that USCIS is applying tougher standards for what qualifies as a successful business.

That said, the E-2 can be a relatively quick visa to acquire, and if you're interested in pursuing a business with a limited trajectory (before selling on, or closing), then the E-2 may still be your first choice.

E-2 visa holders can only work for the investment business, which served as the basis for the E-2 visa application.

However, spouses who secure an E-2 dependent's visa may secure a work permit that allows them to take a job wherever they can secure an offer.

If business fails, holder must leave US even if their E-2 status has not expired

And they are not allowed to start a new or different business, without first applying for a fresh E-2 to cover their work for the new enterprise.

Children no longer qualify for dependent visas when they turn 21, so they must then qualify and apply for a different visa (typically a student visa, or more rarely a specialist visa) if they wish to stay in the U.S.

The E-2 visa is classified as a "non-immigrant" visa, which means it will never lead to permanent residency.

While it does not bar a person from pursuing permanent residence, it also does not provide a basis for qualifying for permanent residence.

When E-2 visa holders sell or close their sponsoring business, they must either leave the U.S. or qualify for a different visa, if they wish to stay in the U.S.

As a non-immigrant visa, there is no path to permanent residency.

This is a key difference for clients who might be considering investing a similar amount in an EB-5 programme, which does lead to permanent residency.

E-2 visa holders do not qualify for the benefits enjoyed by permanent residents like homestead exemption, eligibility for federally insured student loans, certain types of financial aid and scholarships for university studies, among other things.

For applicants from applicable countries, E-2 visa holders and their families may be issued E-2 status in the U.S. for up to five years.

However, many treaty countries have limits of only one or two years, or even just a few months.

Even if the E-2 is renewed upon request, the increased burden of international travel can become costly, especially for larger families.

EB-5 IMMIGRANT INVESTOR VISA

The EB-5 visa is an immigrant visa, i.e., it leads to permanent residence.

The EB-5 visa requires a minimum investment net worth of USD $1 million, and of $900,000 in a Government-approved investment.

A Regional Center is a legal entity, organization, or a municipal or state agency that has been approved by the US government to accept funds from foreign nationals specifically to qualify for permanent residence based on their investment.

A Regional Center sets up limited partnerships, each with its own business activity, and manages the business of the limited partnerships as the general partner. Foreign investors who wish to obtain permanent residence in the United States may become limited partners through a $500,000 investment in a project (again, $900k from 21 November 2019). The investor is not involved in the daily management of the Regional Center.

Regional Centers must create at least 10 new, full-time jobs per investor for the investors to be approved for permanent residence. These jobs can be direct, indirect, or expenditure-based jobs. Each Regional Center Business Plan contains a “job creation methodology” on which the Center’s job calculation is based.

The investor must prove that he/she has invested funds that were obtained through legitimate means such as employment, business ownership, investment, inheritance, or a gift. USCIS expects the investor to provide tax returns from the investor’s home country or country of current residence, and to document clearly how the investment funds were obtained.

USCIS requires that the investment be “at risk” in the commercial sense; thus, the Regional Centers cannot guarantee the return of the investment funds.

EB-5 IMMIGRATION PROCESSING:

After the investor has made a $500,000 investment (NB: $900k after 21 November 2019, see above), the immigration attorney files the Immigrant Petition with USCIS on behalf of the investor. At this stage, processing can take anywhere from 1 to 6 months, depending on the Regional Center.

Upon approval of the initial petition, the attorney files for consular processing of an immigrant visa for the investor and his/her family, or for adjustment of status in the U.S., if the investor is in the U.S. with a long-term visa.

The initial conditional Green Card is issued for 2 years. Before the end of the 2 years, the investor’s attorney must file for the removal of the green card condition. To qualify for the permanent green card, the investor must prove to immigration that the investment is still in place and that the Regional Center has created 10 jobs per investor, as per the previously approved business plan.

ADVANTAGES OF THE EB-5 INVESTOR PROGRAM:

The investor can live in the U.S. State of his/her choice, and does not need to manage the investment business;
EB-5 investors may work for any employer in any position; they may operate their own business; or, they may retire;

Unlike E-2 investors, EB-5 green card holders do not have to leave the U.S. at regular intervals, and they can manage their own business without visa constraints;

EB-5 investors and their family members can freely enjoy the many benefits of permanent residence in the U.S.;

The children of EB-5 green card holders are free to work or to attend the school of their choice, and they qualify for scholarships and in-state tuition;

There no repeated visa denial worries for EB-5 green card holders;

DISADVANTAGES OF THE EB-5 PROGRAM:

Some people find the following requirements for permanent residence inconvenient:

Green Card holders must establish residence in the U.S., and they must be present in the U.S. at least 180 days/year (unless they apply for a re-entry permit);

Green Card holders must declare their worldwide income and assets in the U.S. for tax purposes.

The minimum investment requirement is higher, namely $500,000 rather than $150,000+.  That difference will grow dramatically when the minimum EB-5 investment is incrased to $900k after 21 November 2019.

Under the regional center version of the EB-5 program, the investor does not manage the business himself. For entrepreneurial investors, this is a disadvantage, since they typically like to have more control over their own destiny. For people who just want to retire to the U.S. and not work, or who want to work as an employee in a type of job that would not normally qualify for a work visa in the U.S., then this is not a disadvantage. Also, for people who want to develop a business or pursue investment activities in the U.S. that would not normally qualify for a visa, then the freedom from operating the business that underlies the EB-5 green card is an advantage.

There is another version of the EB-5 program, which enables an entrepreneurial investor to qualify for the EB-5 green card based on investing in and developing their own business and creating 10+ new, full-time jobs.

EB5 and E2 Visas Reviewed
Comparing EB-5 and E-2 visas

Name: The Advantages and Disadvantages

Description: In over 25 years of working as US Immigration Lawyers we have yet to find the perfect visa that has no downside.

It is important when selecting your visa you pick the one that will serve you the best once you arrive in the USA.

This means you may need to compromise a little to ensure your secure the right visa.

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