How can I use a business I created while on an E-2 to apply for EB-5?

We will need to trace your personal capital contribution and investment of $900,000 in the business you purchased. We will also need to measure the number of new jobs you created following your purchase. If it had eight employees upon purchase, then you will need at least 18 to qualify. Those 10 employees can be acquired now or after filing for an EB-5 visa with a comprehensive business plan. You should further reach out to a specialist to further discuss your plans to determine your eligibility.

Employment makes sense, but the investment, not revenue, needs to hit the $900,000/$1.8M limit. So, the E-2 investment counts toward EB-5, and you may need to "top off" with additional personal investment funds to hit the threshold.

It may be doable if we can show the money you invested, or earned, and put back in the business equals the $1.8 million or $900,000, depending on where the business is located.

The minimum investment amount is $1.8 million or $900,000 if in a TEA. So, to start you must invest the correct amount. Second, that investment must create the requisite number of jobs. If you purchase an existing business, you must simultaneously or subsequently restructure or reorganization it such that a commercial enterprise results; and you must "expand the existing business such that a 40% increase either in the net worth or the number of employees results." While not stated in the regulations, the USCIS appears to want you to show in addition that at least 10 new jobs were created.

Generally, you can file an EB-5 petition based on an E-2 business. You will need to source the required amount of capital investment; demonstrate you meet the investment amount and that at least 10 jobs have been created because of your investment. If the jobs have already been created, a business plan will not be required.

Under the right circumstances, an E-2 can be a great vehicle to transition to EB-5, but you must do it the right way. First, if there were any existing employees at the time you made your E-2 investment, those will not count for your EB-5 case. Also, to be considered "new," the business should have been established after November 1990. Finally, retained earnings do not count towards your EB-5 investment. You would need to either (1) withdraw, pay tax, and reinvest your profits, or (2) make a new investment so that the E-2 initial investment plus the new investment meet the EB-5 requirements. The percent ownership does not matter much in EB-5, unlike in E-2.