What are the risks involved with the E-2 pathway compared to EB-5?

A common path is the E-2 to get you and your family here and get your business up and running, kids in school etc. Your spouse would get an open market work permit and often her employer can act as your green card sponsor. Alternatively, if your business grows and you put sufficient funds in to qualify for EB-5 and have a plan for 10 fulltime employees in the business, then at that point you can also start the green card process through your own business.

E-2 does require an intent to return. However, it may not be fraud in certain circumstances. Here is the State Department guidance: An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period, nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The applicant may sell their residence and move all household effects to the United States. The applicant’s expression of an unequivocal intent to depart the United States upon termination of E status is normally sufficient. An applicant who is the beneficiary of an immigrant petition will need to satisfy you that his/her intent is to depart the United States at the end of his/her authorized stay, and not stay in the United States to adjust status or otherwise remain in the United States.

E-2 is less costly – initially at least – and it is suitable for long-term non-immigrant status. However, it will not give you residence (regardless of how long you maintain the E-2 status) and your children will eventually age out and will not be able to derive E-2 status from you. You can convert E-2 to EB-5… assuming your business does well and the minimum investment threshold has been met.

The E-2 visa is a great option for business owners. There is no specified minimum investment or number of jobs to be created (although a credible business usually is still a significant investment and usually has at least some employees). It can be renewed indefinitely as long as the project is profitable. There are no minimum number of days you have to spend in the US. Your kids can attend school and your spouse is employment authorized. You also may not have to pay US taxes on worldwide income. It does, however, have a couple potential downsides. There is no direct green card path. You can use the E-2 business as a basis for an EB-5 investment and petition if you meet the minimum investment and job creation requirements, but it is not like going from L-1 to EB-1C or H-1B to EB-2/EB-3. Your kids can only come with you until their 21st birthday, then they age out and need their own status. It must be renewed, and there is potential risk in every renewal. Your visa is valid for a certain number of years (depending on country). Every time you enter the US, you will be granted E-2 status for 2 years. Every time you leave and come back, you should get a new 2 year period. However, you need a valid visa to enter. At some point, your visa or your status will expire, and you will need to apply to USCIS to extend your status or to the consulate abroad to renew your visa. The law requires your business to be more than marginal (i.e. profitable), and if it is not, you might not get renewed. Also, changes in law or policy, or simply changes in staffing at the consulate or USCIS can lead to different results, even if nothing has changed. A good immigration attorney can mitigate these risks, but they are risks inherent in the administrative process and cannot be fully eliminated. In my experience, the renewal process is extra paperwork and extra stress, but usually not a problem in the vast majority of cases. You also must file an amended petition or visa application prior to changes in your business or before the investor can accept employment with any other business - even one that they own (with limited exceptions). The E-2 visa is not suitable for passive investments, like a real estate or stock portfolio. The business must be an active, commercial enterprise. The E-2 visa is ideal for many people who wish to own and develop their own business in the US. Although you are not necessarily required to engage in day to day management of the enterprise, you must develop and direct the business. As a result, it is not suitable for people who simply want a visa and no involvement in their business. (There is an E-2 visa for employees of the investor for certain managerial or essential employees, but that is a different discussion and not covered here, where I only discuss the E-2 visa for an investor).

Yes, E-2 is very doable. Entering the US under E-2 with a future plan to apply for a green card is a little bit tricky, but also possible. It appears that there are many complex issues surrounding your case. You should consult with an attorney and figure out the right path.

We have filed a relatively large number of E-2 visa applications for persons who have obtained both Grenadian and Turkish Citizenship by investment and may be about to process our first E-2 case for a Montenegrin. So far there have been no issues with any of these E-2 cases and all visas in Istanbul and other locations have been approved without question. The fact that your intent was for immigration is irrelevant. If you enter the US on an E-2 visa and then later decide to file paperwork to transition to a green card it is certainly not fraud. Filing for an EB-5 before you enter the US on an E-2 is workable but it is more tricky for the reasons you indicate, it is much better if the E-2 comes first and the decision to transition to a green card is made after having lawfully entered the US. The primary issue is having a mechanism that allows you to make that transition from E-2 to green card. A very common route to a green card is establishing an E-2 business and then filing for a green card through EB-1C (if eligible) or EB-5 as the business grows over time.

It is no problem to enroll your kids in school on an E-2.