The temporary E-2 classification is often a more realistic alternative to the EB-5 category for permanent residence that also allows for self-employment and long-term presence in the U.S. Both E-2 treaty investor and E-1 treaty trader visas require a treaty of Freedom, Commerce, and Navigation (FCN) or bilateral investment treaty (BIT) between the U.S. and the applicant’s country intended to facilitate economic and commercial interaction.
E-1/E-2 visa applicants must meet certain requirements, including:
- Applicants must have the nationality of the treaty country.
- The trade or investment must be substantial. E-2 investors must place a substantial amount of capital at risk with the objective of generating a profit.
- The investment must satisfy the proportionality test, which compares the amount of qualifying funds invested and the cost of creating the type of business contemplated. The test considers the amount of funds required to determine the appropriate investment level.
- The investment must have the capacity to be more than marginal, either by having capacity to generate enough income or by making a significant economic impact through job creation.
- Investors must have the ability to direct and control the enterprise through majority ownership.
We represent immigrant investors pursuing permanent residence through EB-5 petitions with a special focus on representing those E-2 investors who are able to petition through their own U.S. businesses.
An applicant must make the necessary investment in a new commercial enterprise and plan to create or create 10 permanent full-time jobs for qualified U.S. workers.
Since November 21, 2019, the standard minimum investment amount has increased to $1.8 million (from $1 million) and the minimum investment in targeted employment areas has increased to $900,000 (from $500,000).
The EB-5 petition requires evidence that the investment was made in a qualified commercial enterprise, the required amount of capital was placed at risk, the capital was legally acquired, and the new enterprise will create at least 10 full-time positions for qualified employees.
With an approved EB-5 petition, the investor applies to become a conditional resident, a status that lasts for two years. The investor files an application to remove the conditions before the end of the initial two-year period of residence. At this stage, USCIS needs concrete proof of job creation. To remove conditions on permanent residence, the investor needs to show again that he or she invested the required capital, sustained the investment during the conditional period, and created 10 full-time jobs for qualifying U.S. workers. Failure to file for removal of the conditional status or denial of the petition leads both to automatic termination of conditional resident status and being placed in deportation proceedings.
