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How can I transfer from an E-2 visa to EB-5 direct investment?

I am currently on an E-2 visa. I have invested $350,000 in the business and have created six jobs with 1099 status (contract status). I am planning to invest $200,000 more, create more jobs and switch the 1099 contractors to W-2 employees. How can I proceed in this case? Do I need to make the additional investment and fill in the jobs right before filing for EB-5? Currently, I am operating in a non-TEA area, but the nature of my business gives me flexibility to move to a TEA area. Moreover, most of my independent contractors (employees) commute from a TEA area. Are there any deadlines/sunset dates for EB-5 direct investment program?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    There is no deadline for direct EB-5 program at this time. You should retain an experienced EB-5 immigration attorney with experience to qualify E-2 business for EB-5.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You should invest the $200,000 and move the business to a TEA area before the I-526 petition is filed. There are no deadlines or sunset dates for the EB-5 direct program.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Many of our clients change from E-2 to EB-5 when they have the required amount of money available or assured, and can commit to hiring a total of 10 employees. No plans to sunset the individual EB-5 program; but there are several bills pending to raise the amount of required funds to over $1 million. You should try to get something filed before that happens.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    When the minimum requisite capital (at least $500,000 in a TEA or $ 1million if the business is located outside a TEA) has been invested or is being imminently invested, you can file for the EB-5 petition, along with the additional required supporting documents (i.e., a business plan, legal source of funds, etc.). You do not need to have the minimum job creation completed before, as long as the business plan clearly indicates a timeline and structure under which the jobs will be created and maintained. You will, however, need to show the requisite job created when you file to remove the condition on permanent residency.

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    Charles Foster

    Immigration Attorney
    Answered on

    There is no actual transfer from E-2 visa status to an EB-5 direct investment. However, when you file the EB-5 investor petition on Form I-526, you can include the $350,000 you invested in the business and the jobs that have been created in your new enterprise. However, you cannot count contract jobs; you are required to show that you are in the process and have directly hired 10 new U.S. workers who receive W-2 forms. Obviously, if you move your enterprise to a TEA, then you can qualify under the $500,000 provision rather than the $1 million. Contractors are not counted in job creation. There is no specific deadline.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    In order to use an investment, whether E-2 or another one, the amount of funds invested must be according to the location tract ($500,000 or $1 million) and must also be funds of the investor and not recapitalization of the investment. In other words, the investor cannot use the funds that he makes out of this investment in order to complete the rest of the investment. It needs to come from another source of funds.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This is doable. You will need to show the funds have been invested in the project, obtain a business plan to show the jobs to be created, get a state assessment of TEA and the usual I-526 requirements for source of funds documentation, etc.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    There is no sunset on the direct EB-5 program. Thus, you should take your time making sure that your business qualifies for the TEA. Job creation does not need to be done yet, but full investment amount of minimum $500,000 for a TEA area.

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    Kyle Barella

    Immigration Attorney
    Answered on

    It is possible to upgrade from the E-2 to visa to the EB-5 visa. You need to have invested the entire amount or be in the process of investing the money. You must ensure you invest the money personally (i.e., not directly from the business unless you first realize the money). It is important when upgrading from the E-2 visa to the EB-5 visa that all steps are properly performed. I would advise retaining a qualified EB-5 lawyer as soon as possible to discuss in further detail.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    At the time of investment you need to show the funds are invested or you are "in the process of investing," that you will create 10 full-time jobs before the end of conditional permanent residency, and that you are in a TEA. We may be able to count previous investment and jobs upon careful review. EB-5 direct is not really subject to the sunset date, but changes in law, policy and regulations may affect direct projects if they ever come. Retaining an EB-5 attorney is very important for the E-2 to EB-5 change!

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    No deadlines for direct EB-5. E-2 to EB-5 is doable, but you need to retain an attorney with prior experience in E-2 to EB-5 "conversion" to guide you.

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