Advantages and disadvantages of

E-2 and the EB-5 visas

 

 

Advantages of the E-2 visa:

Allows foreign investors from over 75 countries, signatories of an investment treaty with the U.S., to establish, develop, and operate a business of their choice in the U.S.;

See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

There is no set minimum investment required. The regulations state only that the investment must be sufficient to develop a successful, non-marginal business.

However a substantial initial investment should be at least $150,000+ for the proposed business to develop according to the State Department criteria;

The E-2 investor’s spouse and children under 21 will be issued E-2 dependent visas. The E-2 spouse may apply for a work authorization based on his/her E-2 dependent visa;

E-2 dependent children under 21 may attend the school of their choice in the U.S., but they do not qualify for a work visa;

E-2 visa holders may stay outside the U.S. for an undetermined amount of time, and still re-enter the U.S. with their visa, as long as it is valid; and In many states, the children of E-2 visa holders qualify for in-state tuition at state universities until they cease to qualify as E-2 dependents at the age of 21.

Disadvantages of the E-2 visa:

E-2 visa renewals are generally denied, if the business is borderline successful or struggling;

E-2 visa holders can only work for the investment business, which served as the basis for the E-2 visa application;

They have to leave the U.S. if their business fails, even if there E-2 status has not expired;

Children no longer qualify for dependent visas when they turn 21, and they must then qualify and apply for a different visa (Student visa or Specialist visa) if they wish to stay in the U.S.

The E-2 visa, being a non-immigrant visa, does not lead to permanent residence.

While it does not bar a person from pursuing permanent residence, it also does not provide a basis for qualifying for permanent residence. When E-2 visa holders sell or close their sponsoring business, they must either leave the U.S. or qualify for a different visa, if they wish to stay in the U.S.;

E-2 visa holders and their families are issued E-2 status in the U.S. for only 2 years each time they enter the U.S., even if the visa is valid longer. The constant travel requirement can be very costly, especially for larger families.

E-2 visa holders do not qualify for the benefits enjoyed by permanent residents like homestead exemption, eligibility for federally insured student loans, certain types of financial aid and scholarships for university studies, among other things.

The EB-5 Immigrant Investor Visa (EB-5 Regional Center Green Card)

The EB-5 visa is an immigrant visa, i.e., it leads to permanent residence.

The EB-5 visa requires an investment of $500,000 in a Government-approved Regional Center project.

A Regional Center is a legal entity, organization, or a municipal or state agency that has been designated as a Regional Center by USCIS (U.S. Citizenship and Immigration Services), which enables foreign nationals to qualify for permanent residence based on their investment in a Regional Center Project.

A Regional Center sets up limited partnerships, each with its own business activity, and manages the business of the limited partnerships as the general partner. Foreign investors who wish to obtain permanent residence in the United States may become limited partners through a $500,000 investment in a project. The investor is not involved in the daily management of the Regional Center.

Regional Centers must create at least 10 new, full-time jobs per investor for the investors to be approved for permanent residence. These jobs can be direct, indirect, or expenditure-based jobs. Each Regional Center Business Plan contains a “job creation methodology” on which the Center’s job calculation is based.

The investor must prove that he/she has invested funds that were obtained through legitimate means such as employment, business ownership, investment, inheritance, or a gift. USCIS expects the investor to provide tax returns from the investor’s home country or country of current residence, and to document clearly how the investment funds were obtained.

USCIS requires that the investment be “at risk” in the commercial sense; thus, the Regional Centers cannot guarantee the return of the investment funds.

EB-5 Immigration Processing:

After the investor has made a $500,000 investment in the Regional Center of his/her choice, the immigration attorney files the Immigrant Petition with USCIS on behalf of the investor. At this stage, processing can take anywhere from 1 to 6 months, depending on the Regional Center.

Upon approval of the initial petition, the attorney files for consular processing of an immigrant visa for the investor and his/her family, or for adjustment of status in the U.S., if the investor is in the U.S. with a long-term visa.

The initial conditional Green Card is issued for 2 years. Before the end of the 2 years, the investor’s attorney must file for the removal of the green card condition. To qualify for the permanent green card, the investor must prove to immigration that the investment is still in place and that the Regional Center has created 10 jobs per investor, as per the previously approved business plan.

Advantages of the EB-5 Investor Program:

The investor can live in the U.S. State of his/her choice, and does not need to manage the investment business;
EB-5 investors may work for any employer in any position; they may operate their own business; or, they may retire;

Unlike E-2 investors, EB-5 green card holders do not have to leave the U.S. at regular intervals, and they can manage their own business without visa constraints;

EB-5 investors and their family members can freely enjoy the many benefits of permanent residence in the U.S.;

The children of EB-5 green card holders are free to work or to attend the school of their choice, and they qualify for scholarships and in-state tuition;

There no repeated visa denial worries for EB-5 green card holders;

Disadvantages of the EB-5 Program:

Some people find the following requirements for permanent residence inconvenient:

Green Card holders must establish residence in the U.S., and they must be present in the U.S. at least 180 days/year (unless they apply for a re-entry permit);

Green Card holders must declare their worldwide income and assets in the U.S. for tax purposes.

The minimum investment requirement is higher, namely $500,000 rather than $150,000+.

Under the regional center version of the EB-5 program, the investor does not manage the business himself. For entrepreneurial investors, this is a disadvantage, since they typically like to have more control over their own destiny. For people who just want to retire to the U.S. and not work, or who want to work as an employee in a type of job that would not normally qualify for a work visa in the U.S., then this is not a disadvantage. Also, for people who want to develop a business or pursue investment activities in the U.S. that would not normally qualify for a visa, then the freedom from operating the business that underlies the EB-5 green card is an advantage.

There is another version of the EB-5 program, which enables an entrepreneurial investor to qualify for the EB-5 green card based on investing in and developing their own business, and creating 10+ new, full-time jobs.

Resources

History of the EB-5 Visa Program

EB-5 Policy and Legal Considerations

FREQUENTLY ASKED QUESTIONS FOR THE EB-5 VISA

EB-5 Regional Center list state by state

American Immigration Lawyers Association EB-5 Committee and Invest In the USA 

Due Diligence Issues for EB-5 Investments

Retainer agreement disclosures, confirmations, warnings and conflict waivers:

USCIS Executive Summary May 2012 EB-5 Immigrant Investor Program

Governors office of California EB-5 UPDATE

Investor Options: E-2 versus EB-5

Advantages and Disadvantages of the E-2 and EB-5 Visas

Documents required for the I-526 Filing

 

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