What are the visas available to Investors?
Investor visas allow certain foreign investors to come to the United States if they make certain investments in United States commercial enterprise(s). There are two main types of visas available for foreign investors: the E-2 visa and the EB-5 visa. The E-2 visa is a temporary non-immigrant visa, while the EB-5 visa is an immigrant visa through which a EB-5 visa holder may receive permanent residency.
What is the Difference Between the EB-5 and E-2 Visas?
There are distinctive differences between EB-5 visas and E-2 visas related to permanency, eligibility, and requirements.
The EB-5 visa is an immigrant visa by which a foreign investor can receive permanent residency in the United States. The EB-5 visa requires that the investment be of a certain amount and create a certain number of qualifying jobs.
The E-2 visa is a non-immigrant visa by which a foreign investor can receive temporary residency in the United States if the visa applicant is participating in investment in a United States business and is a citizen of a country with which the United States has a standing applicable treaty of commerce and navigation. Certain employees of an E-2 visa holder or of a qualifying organization may also receive an E-2 visa.
Who Qualifies for the E-2 Visa?
To qualify for an E-2 visa, an individual must:
- Be a treaty trader;
- Be a national of a country with which the United States maintains a treaty of commerce and navigation;
- Be in the process of investing, or have already invested, a substantial amount of capital in a bona fide enterprise in the United States;
- Be seeking to enter the United States for the sole purpose of developing and directing the investment enterprise.
- This is shown by having at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
Who Qualifies for the EB-5 Visa?
In order to obtain an EB-5 visa, an EB-5 applicant must make a necessary investment in a commercial enterprise in the United States and are planning to create or preserve 10 permanent full-time jobs for qualified U.S. workers. Generally, a business investor must invest $1.8 million or the lower amount of $900,000 if made in a targeted employment area in order to qualify for the EB-5 visa. Moreover, the investment must be in a new commercial enterprise to qualify under the visa.
What is the Process to Obtain the E-2 Visa?
The application process for obtaining an E-2 visa is straightforward; however, some distinctions may exist depending on the U.S. Embassy or Consulate where the applicant submits his or her petition, or if the applicant is already in the United States when petitioning for the visa.
Applicants Outside the United States
Step One: Submit Form DS-160 and Register with Yatri System
E-2 applicants who are outside the United States when petitioning for the E-2 visa must register with the online Yatri system; submit Form DS-160, Nonimmigrant Visa Electronic Application and a correctly formatted photo of the applicant; and pay applicable visa fees for the applicant and his or her family members.
After the application has been reviewed, the applicant will be prompted to schedule an interview at the U.S. Embassy or Consulate in the applicant’s country.
Step Two: Schedule and Attend U.S. Embassy or Consulate Interview
An interview with a consulate officer is generally required for E-2 visa applicants. The E-2 applicant must contact the U.S. Embassy or Consulate near them to schedule the interview.
At the interview, the E-2 applicant must bring the following documents:
- Receipt showing payment of the non-refundable application fees;
- The applicant’s valid passport;
- Confirmation page from Form DS-160 for principal applicant and family members;
- Photo of applicant that meets photograph requirements;
- Completed Form DS-156E, Nonimmigrant Treaty Trader/Treaty Investor Application for the principal applicant only;
- Form G-28 for applicant’s represented by an attorney;
Applicants Inside the United States
E-2 visa applicants who are already in the United States can petition to change their status by filing Form I-129, Petition for Nonimmigrant Worker.
Premium processing is available for E-2 applicants, which will expedite the application process.
What is the Process to Obtain an EB-5 Visa?
The process to obtain an EB-5 visa is fairly simple. However, an applicant must be able to prove by evidence his or her eligibility for the visa. In order to receive an EB-5 visa, an applicant must follow the steps below:
Step One: File Form I-526, Immigrant Petition by Alien Investor and Evidence
An applicant must first complete Form I-526, Immigrant Petition by Alien Investor with the United States Citizenship and Immigration Services (USCIS). If USCIS approves the petition, it will be sent to the National Visa Center where a case number will be assigned.
When submitting Form I-526, the applicant must be able to prove through documentation:
- The business qualifies as a for-profit new commercial enterprise according to the new commercial enterprise definitional requirements;
- The applicant is or will be managing the new commercial enterprise through direct oversight or through formulating policy that applies to the business;
- Evidence of the applicant’s investment in the commercial enterprise;
- Evidence that the applicant’s investment capital was lawfully acquired and held by the applicant, including:
- Tax returns;
- Foreign business registration records;
- Certified court judgments;
- Evidence of other sources of capital
- Evidence that the business will meet the job creation requirements, including:
- Documentation showing the business has met this requirement;
- A comprehensive business plan projecting that the business will meet this requirement.
- Evidence that the business will meet the troubled business requirements, if applicable, including:
- Copies of tax records;
- Copies of Form I-9 Employment Eligibility Verification of employees;
- Other relevant documents for qualifying employees;
- A comprehensive business plan in support of the applicant’s petition.
Step Two: File Form DS-261, Choice of Address and Agent
After the National Visa Center receives the petition and the applicant’s priority date matches the most recent qualifying date, the applicant will be instructed to complete Form DS-261, Choice of Address and Agent with the United States Department of State. The NVC will also instruct the applicant to pay all applicable fees.
Step Three: File Form DS-260, Application for Immigrant Visa and Alien Registration
If the EB-5 applicant is not presently in the United States, the applicant will need to file Form DS-260, Application for Immigrant Visa and Alien Registration with the United States Department of State once his or her petition is approved.
Step Four: File Form I-485, Application to Register Permanent Residence or Adjust Status
If the EB-5 applicant is already in the United States under another non-immigrant status, he or she must file Form I-485, Application to Register Permanent Residence or Adjust Status with the USCIS.
Step Five: Receive Conditional Permanent Resident Status
Individuals who successfully receive an EB-5 visa are in the United States as a conditional permanent resident. This status will require the visa holder to seek lawful permanent resident status after two years in the United States under conditional permanent resident status.
Step Six: Petition for Lawful Permanent Resident Status
After living in the United States for two years under conditional permanent resident status, the visa holder must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This must be filed within 90 days of the conditional residency status two year expiration date.
When submitting Form I-829, the applicant will need to produce evidence showing he or she has maintained his or her investment in the business throughout the two years and that the business has met the job creation and other requirements for the EB-5 visa.
Premium processing is not available for EB-5 visa applicants.
How Long are E-2 Visas Valid?
Because the E-2 visa is a temporary nonimmigrant visa, the initial length of stay for E-2 visa holders is capped at two years. Extensions may be granted in increments of two years each and there is no limit to the number of extensions E visa holders may be granted.
How Long are EB-5 Visas Valid?
Because the EB-5 visa is an immigrant visa, the visa holder will receive conditional permanent residency status for two years, at which time the visa holder can petition for lawful permanent resident status (Green Card).
How Much Does it Cost to Obtain an E-2 Visa?
The application fee for an E-2 visa is $205. An issuance fee may also need to be paid one the applicant’s visa is approved, depending on the applicant’s nationality.
How Much Does it Cost to Obtain an EB-5 Visa?
The cost to file Form I-526 is $3,675.
The cost to file Form DS-260 is $325.
The cost to file Form I-485 is $1,140.
The cost to file Form I-829 $3,750.