How should investors choose between EB-5 and E-2?

Currently, the minimum investment amount for an EB-5 visa is $500,000 if an EB-5 business principally does business in a targeted employment area. If you do not have the entire amount in your possession and control based on a lawful source of funds, you will not qualify for EB-5 visa. Please also note EB-5 investment amounts are expected to significantly increase after Nov. 21, 2019. Because I-526 petitions are currently taking approximately two years or longer to get processed by USCIS , it is not realistic for you to be able to immigrate quickly. An E-2 visa may be an option for you to come to the United States relatively quickly on a non-immigrant visa since you possess nationality of a treaty country to qualify for the E-2 visa, assuming all other requirements have been met. You may also structure E-2 business to qualify for EB-5 in order to apply for a green card in the United States. An E-2 visa will not, however, give you a direct option to apply for a green card in the United States. Another option may be to consider an L-1A intracompany transferee non-immigrant visa if you qualify. L-1A visa does offer an option to apply for a green card in the future, assuming all requirements have been met. Please contact an experienced immigration attorney to review all immigration options.

E-2 is non-immigrant and EB-5 is immigrant. E-2 is more practical to get a business going until it can sustain 10 full-time employees and also allows you to get into the business with $100,000 to $150,000, rather $1 million.

If you have children who will turn 21 and age out, then you need to focus on EB-5. Also, since the minimum investment amount will go from $500,000 to $900,000 (and to $1.8 million for non-TEA) on Nov. 21, 2019, you need to act fast. Also, they may not be mutually exclusive. You may be able to do both and qualify for both based on the same investment.

Being from an E-2 treaty country or not is first. Then if you want to get into the U.S. quickly or are cool with waiting (E-2 is much faster). Also, E-2 often requires a much smaller investment than the now $500,000 and soon to be $900,000.

There are the obvious considerations for EB-5 vs. E-2 (higher minimum capital investment requirement for EB-5 and requirement for minimum job-creation requirements for EB-5, etc.). You should, however, consider the option of obtaining E-2 to enter the U.S. and start working while processing for EB-5 (which is a time-consuming process) if that is a possibility.

There are pros and cons of both the EB-5 investor preference for obtaining lawful permanent residency and the E-2 treaty investor non-immigrant visa. The advantage of the E-2, provided you come from a treaty country, is it is much faster and you do not have to make any minimum investment, but only a "substantial" investment, which may be as low as $150,000 to $200,000. It does not provide you lawful permanent residency, but for most nationalities, a five-year renewable visa that will include your immediate family. However, when your children turn 21 years old, they would lose their status. EB-5, on the other hand, leads for you and your family to lawful permanent residency, but it can take several years. The critical point is if you&#39re going to seek permanent residency, you should file your petition as soon as possible and before the minimum dollar amount is increased as of Nov. 21, 2019. Under certain circumstances, you could pursue both options in an overlapping fashion.

There is not one formula that fits all. It is good that you have the options. The type of visa that is more beneficial for you depends on your own specific goals and situation. This decision is normally made after a consultation with an immigration lawyer. You may also want to think about the L visa; it seems that you may be eligible for the L visa as well!

Certainly both E-2 and EB-5 will allow investors their own business. However, besides this similarity, there are major differences between the two visas. To begin with, E-2 is a non-immigrant visa while EB-5 is immigrant. In addition, there are numerous different rules that govern the two visas in terms of qualifications, the nature of investment funds needed, duration of each visa, just to name a few. Advisably, consult an attorney on the two options before you proceed.

First and foremost, E-2 is a non-immigrant intent visa. EB-5, on the other hand, is a path toward permanent residency status, which is obtaining a green card. The first step in EB-5 is filing the I-526 petition, whereby the applicant makes his/her immigrant intent declaration. Generally speaking, E-2 is much easier to obtain. It is granted in a few months, as opposed to a few years, as is the case with a conditional permanent residency through EB-5, depending on your country of birth. With E-2, for U.S. tax purposes, you are only subject to taxes for U.S.-earned income, as opposed to global income, as is the case with EB-5. If your country of citizenship has a tax treaty with the U.S., which most likely is the case, you get credit for the taxes you pay in your home country. In that particular common case, even though you are not subject to double taxation, there are still additional tax considerations with EB-5, provided that you continue to have income from sources other than the United States. The job-creation requirement is much less onerous with E-2 than EB-5. In the E-2 case, you could employ a couple of U.S. workers and that could be sufficient. In the EB-5 case, you need to be credited for at least 10 full-time positions. The source of funds scrutiny in the EB-5 case is significantly more onerous than that of the E-2 case as well. In the E-2 case, there is no set minimum investment amount. It appears like it is subjectively determined. Most attorneys advise to invest at least $100,000 to have a good E-2 case, but investments less than this amount may qualify low-cost start-up businesses. For EB-5, on the other hand, you need to make a minimum $ 500,000 investment amount for projects located at targeted employment areas (TEAs) and $1 million for those located at non-TEAs. These minimum investment requirement levels for EB-5 are scheduled to be revised upward effective Nov. 21, 2019. EB-5 projects located at TEAs will have a minimum required investment amount of $900,000 while EB-5 projects located at non-TEAs will necessitate a minimum investment amount of $ 1.8 million. Besides, the definition of what is TEA and what it is not will be redefined post-Nov. 21, 2019. It is possible to convert an E-2 enterprise to an EB-5 direct investment project by increasing the investment amount and following the rest of the EB-5 guidelines. To do that though you need professional advice.

The key consideration is when you&#39d like to come to the U.S. to run your business (if sooner rather than later, then E-2 is the better option) and whether an increase in the required investment to $1.8 million would prevent you from establishing your business (if so, then you need to file for EB-5 prior to Nov. 21). Many of our clients secure an E-2 visa first and then pursue and EB-5 petition. This way, the investor/family can come to the U.S. and live/work here while the EB-5 is pending.

The E-2 visa does not automatically lead to a green card. It is possible to get an E-2 visa and over time if you invest a total of $500,000 of your own money (not just reinvest profits from your business, unless you took out the profits and paid U.S. tax on them and then reinvested the profits into the business). You could apply for an EB-5 green card. Note, however, that the minimum investment is nearly doubling starting this November. The E-2 visa can be approved right away and allow you to come to the U.S. to establish or start the business. Your spouse and/or children will get E visas also, but when your children turn 21 they must find another type of visa.The EB-5 will take several years to be approved (even longer if you are from certain countries with a longer waiting list). Your spouse and unmarried children under 21 will also get green cards if your case is approved. If you are seriously thinking about filing an EB-5 case, now is the time to hurry up and do it.

The most basic factor: Do you want a green card? The EB-5 gives you the most direct, obvious path. Otherwise, in terms of speed, E-2 will generally allow you to enter the U.S. faster and later convert to a green card through EB-5 if you are OK with taking additional steps, but that is a personal preference issue.