LAW OFFICE OF JIMENA G. CABRERA
SPECIALIZING EXCLUSIVELY IN IMMIGRATION LAW
EB-5 INVESTOR REPRESENTATION

Transitioning from e-2 visa to eb-5 investor visa - green card

*The information contained herein is intended for general informational purposes only. It is not intended for legal advice. You must consult with an attorney to obtain specific, comprehensive legal advice. Government processing times may change at any time. For current USCIS processing times contact USCIS directly.

Transition from an E-2 visa to an EB-5 visa requires careful planning and guidance

The E-2 visa is a nonimmigrant visa and while there is no direct path from the E-2 visa to a green card, if you are in the U.S. on an E-2 visa and a green card category becomes available, you can apply for it. One thing to consider is that the E-2 visa does not allow for dual intent, so once you apply for a green card, it may be difficult to renew the E-2 visa or reenter the U.S. if you leave.

 It is possible to use an E-2 company to qualify for the EB-5 visa. Transitioning to an EB-5 visa is possible, as long as the applicant meets all the requirements to qualify for the EB-5, including investing $500,000 or $1,000,000, showing a legitimate source and trail of funds and creating 10 full-time jobs. Please keep in mind:

The source and trail of funds requirement is very stringent for the EB-5 visa and significantly more stringent than the E-2 source of funds requirement. As such, if you are planning to use your E-2 investment to qualify for the EB-5 visa, it is important to plan ahead to ensure you have all the proper documentation in place. This is especially the case if you plan to show continual investment over time (perhaps years) in order to reach the $1,000,000 investment amount.
The initial investment that you made in the E-2 business can count towards the EB-5 investment amount and you can also include other personal funds invested in the business towards this amount.

Money spent on equipment, salaries or any other expenditure that was derived from company revenue cannot be counted towards the investment amount.

If you are interested in the EB-5 visa and your strategy is to show investment over time, you should document every step of that process to prove that the money came from activities where the money can be counted towards the investment amount. For example, if you pay yourself a high salary or dividends, pay taxes on that money and then reinvest those funds back into the business as cash, or buy equipment and/or inventory you can include those funds as part of the investment. Although the corporate distribution requires you to pay taxes on the income, it will ensure that you meet the evidentiary requirements.
Unfortunately, if you do not take a salary or dividends and just leave the company’s earnings as retained earnings, this money will not be considered “investment” for EB-5 purpose

Welcome to our E-2 Visa page.

Here you will find answers to all your questions related to this entrepreneurial visa. We have created a comprehensive resource with a lot of information. Please be advise that this information is not legal advise, if you are looking into applying for this visa, book a consultation and attorney Cabrera will discuss with you the specifics of your case and answer all questions you may have.

GENERAL

An E2 treaty investor visa allows you to live in the United States so you can own and run a US business. This visa is an excellent option for entrepreneurs. You can start a new business or acquire an existing one. Neither requires a track record. This visa is available to  nationals of a treaty country (a country with which the United States maintains a treaty of commerce and navigation). Certain employees of such a person or of a qualifying organization may also be eligible for this classification. E2 visas are highly regulated.

The E-2 visa holders are initially allowed a maximum stay of two years. Requests for extension of stay can be filed and may be granted for periods of up to two years each. Notably, there is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted, as long as the alien maintains the intention to depart the U.S. when their status expires or is terminated.

ADVANTAGES

1. Turn your investment in your US business into a long-term visa.

2. Great for creating your own business in the USA.
3. Unlimited renewals, as long as the business is operating properly
4. No requirement to start a related business in your home country.
5. Modest investment may pave the way to unlimited stay in the USA.
6. Spouses and unmarried children under 21 years of age may apply for E Dependent Visas in order to accompany the main visa holder. The spouse of an E-2 Visa holder may apply for an employment authorization at the Department of Homeland Security (DHS). Dependent children of an E-2 Visa holder are not allowed to work in the United States. They are allowed, however, to go to school in the United States.

REQUIREMENTS

1.      You Must Be National of A Treaty Country

The E-2 Investor Trader Visa is only to people from the countries that the U.S. has a Treaty with.  Many Western countries are on the list but there are also countries from Africa, Asia and the Middle East on the list.  Israel was just recently added to the list. If you are a U.K national, you must also be a resident of the British Isles in order to be eligible.

2.      You Must Have Invested or Be Actively in the Process of Investing

In order to satisfy this part of the test, you must fulfill three requirements.

a)Show Legitimate Possession and Control of the Funds

You must invest funds that you have obtained from a lawful means.  While dollar for dollar accounting is not required, you must prove to the Government that you either saved the money, were given the money as a gift or legitimately earned the money.  There are various forms of proof that will satisfy this requirement including tax returns, bank statements, investment accounts & more

b)All Funds Invested are “At Risk” & Irrevocably Committed

All of the assets invested must be personal assets subject to risk of loss and this really means that you actually have something to lose.  Loans are fine but you must be on the hook if there is a loss and this requirement forces you to sign contracts and/or spend money prior to the approval of the Visa.  At risk money does include credit card debt or other loans as long as those debts are not secured by business assets or in the name of a limited liability business. 

c) You Must Be Close to The Start of Business

While you cannot accept money from clients or “do business” until the Visa is approved, you must be close to starting your business.  The idea here is that the U.S. government does not want to approve Visas for people who “may” set up a business in the U.S. or who have a “desire” to start a business.   As such, your business must be at the start up ready phase.  This means you should have a signed lease, your business bank account should be set up, you should have a website, and you should have purchased whatever you need to get the business up and running.

3.      You Must Be in a Position to “Develop & Direct” the Business With Skills

You cannot get the E-2 Visa unless you are the one that is going to direct and run the business. Also, you must have the appropriate skill set such that the Government has faith that the business will be viable. For example, you would likely not have much success getting and E-2 Visa if you wanted to open a restaurant if the only experience you had was eating in a restaurant.  Normally, your educational background and experience should suggest that you will be in a position to make the business a success.

4.      Your Investment Must Be Substantial

The U.S. Government does not have a predetermined amount that they consider substantial.  As such, your investment could be as low as $50,000 (very rare) or as high as millions.  The actual required investment amount depends on a number of factors including the Consulate you are filing at, the business and the other parts of your application.  You should note that idle cash sitting in a business account is NOT considered an investment but the government will consider a reasonable amount of working capital as part of an investment.  While for a service oriented business a smaller investment can be sufficient at some Consulates, if the business was say a car manufacturer, the required investment amount would have been substantially more.   You should ensure that you keep records of all of your expenditures as the government will want to see them.

5.      Your Investment & Business Cannot Be Marginal

This means that the business cannot be set up so that it provides a means of living just for yourself and family.  It also means that the business will be viable and will be able to continue operations going forward. You can demonstrate a business is not marginal by putting together a business plan that shows growth over a 5-year period or by showing that you plan to hire employees in the future.  Letters of intent or other documents that show that the E-2 business has prospects or prospective clients is also helpful.

6.      You Must Intend to Return to Your Home Country After Expiration

This is not a difficult test to meet and all you must do is sign a document that indicates you plan to return home once your visa expires.  Unlike many other visas, you do not have to show any ties to your home country like a home there. Your spouse and family can also get E-2 visas and your spouse can get full work authorization.

USCIS VS. CONSULATE

If you are in the U.S. on a visa (eg. H-1B or F-1), you can file a petition to change status to an E-2 Visa with the United States Citizen and Immigration Service (USCIS).  The I-129 form you file is the same form that you file for many other non-immigrant visas (eg. H-1B) and you would also complete the E-2 visa supplement. If the petition is granted, it is best to think of yourself as “in E-2 Status” rather than having an E-2 “visa” as the change of status does NOT permit you to reenter the country the way an E-2 visa would.  E-2 status is typically granted for a 2-year period.  If you have been granted a change of status and leave the U.S., you must qualify for an E-visa at a consulate before reentering. This does NOT mean that you simply show the consulate your I-797 approval notice like with most visas but rather you must reapply for the E-2 from scratch and submit all supporting documentation as if the application were to be a new one.  If your application is approved, an E-2 Visa is added to your passport and you will be able to leave and reenter the U.S. at will.

If you are outside of the U.S., you must file a DS-160 and this long application is completed online.  You must also complete a DS-156E supplement.  The exact instructions of how you apply for the visa are usually outlined on the website of the relevant consulate and the documentation that you must provide is generally the same as the documentation you would provide if you were filing in the U.S..  That being said, the consulate may impose some additional specific procedural requirements.  The visas are typically granted from between 2 & 5 years and you are permitted to leave and enter the U.S. whenever you like.  If you have dependents, separate DS-160 applications must be completed for them.

FREQUENTLY ASKED QUESTIONS

1. How much do I have to Invest to get an E-2 Visa?

This is the number one E-2 Visa question that we receive. To obtain an E-2 visa, the investment must be “substantial” in relation to how much it costs to set up the business. If the total amount required to set up a business is low (eg. a service oriented business such as a consulting company) then you may be able to invest as low as $50,000 to obtain an E-2 visa. If the cost to start a business is high (eg. a car manufacturing plant), then an investor would be required to invest hundreds of thousands of dollars to obtain an E-2 visa.

You should also keep in mind that investment amount requirements vary drastically by Consular posts and some posts would not accept an application with an investment amount of $50K. Some raise the bar to as high as $250,000 for any E-2 visa application.

2. Can I use a home office for an E-2 visa or do I have to rent office space?

While a lease is not a requirement in the E-2 visa Statute, a commercial lease is a very important part of the E-2 visa and we almost always recommend that the investor obtain a commercial lease for office space. Generally speaking, as a rule a home office could jeopardize an application as a Consular officer may question the seriousness of the business. This is especially the case if the application is border-line or if your investment amount is low. The same rule applies to virtual offices. When selecting your office space, you do not need a closed door office but you should sign a lease where you have a fixed desk with enough space to seat all applicants and/or any employees.

3. What can be included in the E-2 investment amount?

You can include any legitimate business expense in your E-2 investment (even for expenses made outside of the U.S.) but some expenses are clearly better than others. Some standard good expenditures include; legal fees, lease payments (you can only include what you have actually paid and not the payments through the term of the lease), equipment, furniture, website set-up, staff, and inventory. You are also permitted to include a small amount of working capital (money in a business bank account) in the investment amount and usually up to $100,000 is acceptable depending on the nature of the business. You may also include the value of any intellectual property as long as you can objectively assign a value to it.

4. Do I have to spend money before the E-2 visa gets approved and what happens if the E-2 visa is not approved?

Yes. The E-2 visa is a visa for investors who are at the final stages of starting a business and who are ready to open the doors. While an E-2 investor takes a risk that the E-2 visa may not be approved, this cannot be avoided as the government will not issue a visa to those merely “thinking” about setting up a business. As such, in order to get the visa you must put funds at risk and spend money before you are approved. You will also be required to transfer funds (working capital) to a U.S. bank account. If you are buying a business or signing a lease, you can include a provision that indicates that you are not obligated under the terms of the agreement if the E-2 visa is not approved. If the E-2 visa is denied we always tell our clients to ask the Consular officer for reasons why the visa was not approved. An E-2 visa denial does not prevent the applicant from applying again at a later time once the issues causing the denial have been addressed.

5. Can my spouse work in the U.S. if I get an E-2 Visa? What about my kids?

Yes. Your spouse can work in the U.S. and is permitted to work anywhere or start his/her own business. Children can remain on an E-2 visa until they reach 21 and can go to school but are not permitted to work.

6. How long will it take for my E-2 visa to be processed?

It depends. Timing at a U.S. Consulate depends on the Consulate and the time of year. For example, the Consulate in Mexico  can take anywhere from one week to 90 days to review a file and call an applicant for an interview. Each Consulate has a different process and timing really depends on that process and how busy the Consulate is.

7. How long will an E-2 visa be issued for?

An E-2 visa can be issued for up to 5 years but the actual amount of time that it is issued depends on the discretion of the consular officer that adjudicates your petition and the country reciprocity. Each country has a different maximum amount of time that an E-2 visa can be issued for.  Regardless of how long the visa is issued for, each time an E-2 applicant enters the U.S. he/she is granted two years in E-2 status.

8. Does an E-2 Visa lead to a Green Card?

No. An E-2 visa is not a green card and it does not lead to one. Like any other visa though, if you are eligible for a green card based on one of the categories (eg. marriage or EB-5), you are permitted to apply for the green card. You should keep in mind that an E-2 visa is a non-immigrant visa so if you apply for a green card while on an E-2 visa, you may have difficulty reentering the U.S. on your E-2 visa. That being said, many investors use their existing business to apply for an EB-5 green card once they have the $500,000 or $1,000,000 to reinvest in the business.

9. Can I buy real-estate and apply for an E-2 visa? Does a real-estate investment qualify for an E-2 visa?

No. The E-2 Visa can be obtained by either purchasing an existing business or creating a new business in the United States and the business must be an “active” business. This excludes passive investments like real-estate or owning stock. If the buying and selling of real-estate is a business then you may qualify but you would have to have a large number of properties that you manage (eg. greater than 25).

10. Do I have to hire U.S. workers right away to obtain an E-2 Visa?

No. You will ultimately have to hire U.S. workers but this is not required in year 1 or year 2 (or even year 3) but rather your ultimate plan has to be to hire U.S. workers over time and prior to your next renewal. Most start-up E-2 visas are approved based on the business plan and we rarely see plans that suggest hiring in year one.

 

 

E-2 TREATY INVESTOR visa

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