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Can one person stay on E-2 while another applies for EB-5?

I am currently on a dual E-2 visa with my mother. We each hold a 50/50 share in our business. She is staying on E-2 but I wish to move to EB-5 using the $500,000. We have collectively invested in purchasing our own business for E-2 and we have 10 new employees. Can I use all the investment and all the employees for my EB-5 application while she stays on E-2?

Answers

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    Barbara Suri

    Immigration Attorney
    Answered on

    Yes, one person may stay on E-2 while the other applies for EB-5.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    This may be possible if you both have E-2 principal status.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes that is possible. Assuming that your E-2 is independent of your mother's E-2 status or vice-versa, you can process for EB-5 and lawful permanent resident status without jeopardizing your mother's E-2 status and you can establish that you individually have invested the minimum requisite capital of $500,000 (for TEA) from your own funds and not split between your mother and yourself.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It can be done, assuming you have personalty invested the full $500,000 from a lawful source of funds and this investment created at least 10 full-time positions of at least 35 hours/week per full-time position. To qualify for a lower $500,000 investment threshold, the commercial enterprise must be in a designated TEA. You will need to maintain an underlying immigration status while waiting for a decision on the I-526 petition.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    You should be able to do this, but you need to give a little bit more thought to it. If all your mother is interested in is E-2, then as long as she owns at least 50% of the business, she is safe. All she needs to be able to prove is that the business she owns creates enough income for her to maintain her life here without being a public burden. She also needs to be able to raise enough money for the business to run. Those raised monies could come from third parties such as you. She does not have to create any jobs, either. Those created jobs could all accrue to you. You, however, have an obligation to invest $ 1 million or $500,000 of your own funds, whatever the case might be. Since so far, you have only invested $250,000, your mother will need to gift you the rest of the $250,000. Make sure that both you and her can show the source of funds for your respective portions. You need to show source of funds for your $250,000. The EB-5 scrutiny is much more onerous than the E-2, so be prepared. Your mother could loan you the other $250,000, but then you will need to provide collateral to her that you can source. That might be difficult. Your mother could gift the monies to you but then she will need to be able to show source of funds. We are saying $500,000 in total, but you need to verify that your business is in a TEA first for that number to be sufficient. Otherwise, you would need to up the investment to $1 million. Don''t forget the other details such as writing or having someone write for you a Matter of Ho-compliant business plan, etc.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, it may be possible for you to qualify for permanent residency by filing an EB-5 investor petition on Form I-526 musing an investment you made in an existing business, provided that you can establish the following. First, you individually invested $500,000 of your own funds. Second, your enterprise is located in a targeted employment area (TEA). Third, as a result of your $500,000 investment, you created 10 new jobs for U.S. workers. You can count all of the employees toward your EB-5 requirement, but again, you must establish that you individually invested $500,000. Your mother can remain in E-2 status during this time, but once you become a permanent resident, she will have to own at least 50% of the business in order to maintain her E-2 status.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, but you can't remain here, as you won't be in status without the E-2.

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    Irina Rostova

    Immigration Attorney
    Answered on

    Yes, that is correct. As long as you can show that your individual investment was $500,000 you can claim all 10 in your E-2 application, as long as she is not filing an EB-5 application.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Yes, you can do what you want to by applying for an EB-5 visa. We have done many hundreds of these for clients over the years.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Both of you should reach an agreement on this issue. However, since both of you contributed the $500,000 E-2 investment on 50/50 basis, your investment is just $250,000, which is far below required $500,000 of typical EB-5 investment. Then, there must be an agreement by which her contribution of $250,000 must be released through some agreement(s) either as a loan or gift to you. The arrangement must be done properly before you can proceed to an EB-5 petition. In addition, as an E-2 entity, be ready to reorganize and make sure your enterprise meets the EB-5 requirements by putting together a business plan for that purpose. It is acceptable to turn an E-2 enterprise to an EB-5 venture. Advisably, work with an EB-5 attorney for further planning to ensure the success of your plan.

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    Robin J Gray

    Immigration Attorney
    Answered on

    Once you convert the entire business to an EB-5, it will no longer be an E-2 business, which will effectively cancel out your mother's visa. That being said, the length of time it may take for the approval of her EB-5 could also last longer than your mother's E-2 visa, so the visa may be expired anyway.

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