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Alternatives when the EB-5 route might not be a timely or cost-effective option for your clients

Since November, many investors and United States-hopefuls have been priced out of the EB-5 or simply don’t want to wait more than 5 years to move to the United States.  What alternate visa options are out there? What are some screening questions to ask your clients who want to move to the U.S. in order to help direct them toward a visa that’s best for them and their families. When speaking with potential clients, ask about their immigration goals, their budgets, their work histories and their timelines.

THE E-2 VISA OPTION

The E-2 visa is an investor visa for those who wish to live in the U.S. and run their own businesses.  This is a visa that most closely resembles the EB-5, since it is based on an investment in the U.S., and also works for someone who expects to invest in the U.S. but has about $150,000-$300,000 to invest.

In addition to the relatively low investment rate, the E-2 visa can be obtained, in most cases, in about 4 to 6 months.  This is much faster than even the simplest EB-5 process.  Those clients who are moving with their children’s education in mind will love the quick and streamlined process of the E-2 visa. 

WHAT ARE THE E-2 REQUIREMENTS?

The requirements for the E-2 visa are relatively straightforward, however everyone outside of the Department of State and USICS are given very little guidance about how to prove that the client meets these requirements.  But, from a 30,000-foot view, here is what your client needs to prove in order to get the E2 visa:  

  1. Investment must be in the control of the investor and “at risk” and irrevocably committed.
  2. Investment must be “substantial.” This requirement doesn’t even come with a minimum or maximum dollar amount. All that is required is a “substantial” investment, enough to “…ensure the treaty investor's financial commitment to the successful operation of the enterprise; and of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.”[1]
  3. Enterprise must be “real and active.”
  4. Enterprise must be “more than marginal.”
  5. The applicant must be able to direct and develop the business.
  6. The applicant must be a national of a treaty country. [2]

Requirement number six can cause issues for some EB-5 alternative seekers.  If your clients carry only passports from China, Vietnam, India, Russia, Brazil or South Africa (among others), they are not eligible for the E-2 visa without additional citizenship. However, there is a solution! In the case of E-2 visas, birthplace is irrelevant and attaining a second passport will suffice to show treaty country nationality.  What does this mean for your clients?  It means they must go through one, simple additional step of citizenship by investment in either Grenada or Turkey for example.  Those countries are E-2 treaty countries, and the E-2 visa can be obtained immediately after these passports are secured.  What’s more, only the applicant needs the additional citizenship.  Spouses and children can be of any nationality.

Even with the additional step, the E-2 visa will be less expensive and faster than the EB-5.  The E-2 visa is an excellent alternative to the EB-5 in almost every case, regardless of nationality, as long as the investor is ok with the fact they never may get a green card.

Questions to ask:

  1. Are you from a treaty country, or can you get a treaty country passport?
  2. Are you interested in running a business in the U.S.?
  3. Do you have a minimum of $150,000 to invest in a new business in the U.S.?

THE L-1 VISA ALTERNATIVE

The L-1 visa allows a foreign company to send an executive or manager to the U.S. in order to set up a U.S. affiliate/subsidiary/parent company. [3]  This visa is an option for your clients who currently own a business in a country other than the U.S., have worked in that business within the last three years and are ready to set up shop in the U.S.

Great for a client who:

  1. Owns a business outside of the U.S. with multiple employees and wants to start a business in the U.S. that is legally related to the original business.
  2. May be interested in a green card at some point.
  3. Wants to move to the U.S. and work within the country in the next 6 months.

Questions to ask:

  1. How many employees work at your company in country X?
  2. Do you currently work at your company in country X?
  3. Are you willing to set up a business in the U.S. and hire multiple American employees within one year?

THE O-1 VISA ROUTE

The O-1 visa is for “individuals with an extraordinary ability in the sciences, education, business, or athletics.”[4]  The most successful O-1 visa applications will be from those who have years of experience and commendations for their work in a certain industry. For those who have a successful career history and would like to be a partial owner of a business within the same industry, the O-1 visa may be a nice option. 

Great for a potential client who:

  1. Has a work history of “extraordinary ability” within the sciences, education or business.
  2. Is OK with having a U.S. business partner, a board of directors or someone else within the company who can hire/fire your client.
  3. Is interested in moving to the U.S. within in the next 6 months.

Questions to ask:

  1. Do you have any publicity regarding your business experience? (Blog interviews, newspaper articles, television interviews, etc.)
  2. Do you have any other ways to prove your “extraordinary ability” within your field of expertise?
  3. Are you willing to have a U.S. business partner or someone else who can hire and/or fire you?

NEXT STEPS

The EB-5 alternative immigration options are vast.  The most important part of leading your clients in the right direction is listening to their goals.  Are they interested in buying a business?  Do they currently have a business outside of the U.S. they have no interest in selling/abandoning? Do they have an incredibly successful (and well-documented) work history?  Are they interested in permanent residency, or are they more interested in a temporary stay? Where are they from? How much money do they have to invest in a business? All of these answers should guide you in the right direction.

Once you and your client choose the best visa for them, it’s time to connect with an attorney who regularly handles the specific visa your client is interested in pursuing. Much like the EB-5, each of these options has so many nuances and potential pitfalls. It’s prudent to at least consult with an attorney who has recent and regular experience with the EB-5 alternative you client chooses. This attorney can give you information about the specific requirements and can speak with the clients to let them know how to proceed. 

Sources:

[1] https://fam.state.gov/fam/09FAM/09FAM040209.html

[2] https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

[3] https://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager

[4] https://my.uscis.gov/exploremyoptions/o1_visas

Angie Rupert

Angie Rupert

Angie Rupert is a Los Angeles-based immigration attorney specializing on E-2 investor visas. She is the founder of Rupert Law Group, a law firm that focuses exclusively on E-2 visas. She has helped clients from all over the world get E-2 visas and run businesses in the United States. Rupert is well-versed in complicated cases with a proven track record on approval rates.

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