By: James Cormie and Kate Kalmykov
As direct EB-5 projects pique investor interest, some investors might find the E-2 an attractive option to enter the United States at a much earlier date with plans to file the I-526 petition once the investor arrives in the United States. The E-2 nonimmigrant visa allows individuals from certain treaty countries (these do not include Brazil, China, India or Russia) to reside in the United States for two years at a time, with unlimited renewals, while they develop and direct a business in the United States. Interestingly, some of the project requirements for a direct investment EB-5 project overlap with E-2 nonimmigrant visa requirements, allowing the applicant a chance to enjoy residing in the U.S. well before their I-526 petition is approved.
An E-2 Treaty Investor that is also an EB-5 investor must meet seven requirements:
- Applicant is a citizen of a treaty country.
- Applicant must own the target company.
- Applicant must be an owner or key employee like an executive or a nonsupervisory with essential skills.
- Applicant must be in a position to “develop and direct” the business. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
- Applicant must make a substantial investment, meaning they are able to sustain the enterprise. Department of State uses a business relative/proportionality test to measure this. Funds are weighed against the cost of creating the enterprise, sustaining and making the operation successful, and the magnitude or likelihood that the investor will be successful.
- The business cannot be a “marginal” business. This means that the enterprise cannot be solely to support the investor and should create jobs.
- Applicant must have the intent to leave the U.S. when her or his job is completed.
An investor putting funds into an E-2 enterprise may also satisfy some of the EB-5 requirements. In particular, $500,000 may satisfy the substantial investment requirement depending on the type of business. The direct EB-5 investor who hires 10 full time employees likely also meets the “marginal” requirement.
Perhaps most interestingly, the E-2 brings many of the EB-5 benefits. For instance, E-2 visa holders may bring their spouse and unmarried children under the age of 21 to the United States. Those dependents may work or study in the United States for the term of the E-2 visa. The E-2 investor can freely travel out of the country, and as long as the business is successful, the E-2 visa holder can remain in the U.S. Moreover, consular processing times are about a month for E-2 visas (depending on where the applicant is) and do not involve USCIS.
Although obtaining an E-2 visa is faster and more efficient than the EB5 process, there are certain disadvantages and risks to the E-2. Among others, applicants from many countries are ineligible because no treaty exists with the United States, children of E-2 visa holders will probably pay out-of-state tuition to school as they are not residents, E-2 visa holders must show intent to return to their home country at the end of their visa, and the management requirement is stricter. There are many more considerations, so any applicant looking at this option needs to consult an immigration attorney. If it is the right fit, however, the E-2 can act as a bridge for the EB-5 investor to skip the queue and get their life in the U.S. started much earlier.