Recently, a gentleman came to my office who is living in the United States on an E2 Visa. After speaking with him for a few minutes, it became clear that he is a top flight entrepreneur. He is operating a thriving business, employing American workers and benefiting the economy. Despite the immense value that he is bringing to the US, his current path will not lead to a green card. In order to obtain a green card, he will have to chart a different course. This post explores the options for people who are in a similar position. Although it is not easy to make the transition from E2 Visa to Green Card, it is entirely possible with sound guidance and planning.
The E2 Visa Requirements
Many gifted foreign nationals come to the US via the E2 Visa. To qualify, for the E2 visa, you have to be a national of a country that has a treaty of commerce and friendship with the United States. If you meet the nationality requirement, you can make an “at risk” investment into a commercial enterprise in the United States to obtain the E2 Visa. Your investment will not qualify unless it is large enough to ensure the successful operation of the business. Although there is no minimum monetary requirement, investments of $200,000 or more tend to fare the best.
The Limitations of the E2 Visa
The E2 Visa is a fantastic option for the right person. It allows brilliant foreign national entrepreneurs to come to the United States to build businesses, create jobs and contribute to our diverse and creative entrepreneurial community. However, the visa does have some drawbacks.
These drawbacks include an ongoing requirement to renew your visa and the lack of a direct path to a US green card. Additionally, under the E2 visa, foreign born children cannot remain in the US past the age of 21. If you are an E2 visa holder who is becoming frustrated by these limitations, you are probably exploring your options for a green card. Below, I discuss five possible options.
Options to go from E2 Visa to Green Card Status
#1 Invest More and Qualify for an Eb5 Green Card
Both the Eb5 and the E2 allows foreign nationals to come to the US to run a business. However, the E2 visa does not result in a green card while an Eb5 does. Also, in contrast to the E2 visa investment, in order to qualify for Eb5, you must invest a specific amount.
Minimum Investment for Eb5
The amount that you will be required to invest depends on where your business is based. For most locations, a $1,000,000 investment is required. For areas with high unemployment, an investment of 500,000 may be sufficient if your business creates a number of full time jobs for American citizens or green card holders.
Job Creation Requirement for Eb5
In addition to having a minimum investment requirement, Eb5 also has a job creation requirement. Your business must create 10 full time positions in order for you to obtain an Eb5 green card. This is frequently a challenge because many businesses can not support 10 full time jobs. Even if the jobs can be created, oftentimes the additional overhead creates a situation where the business is no longer profitable.
#2 Invest in a Regional Center Eb5 Project
If you want to make a passive investment in order to obtain a green card, then it is worth exploring the option of investing in a regional center Eb5 project. To invest in a regional center, you must qualify as an accredited investor. If you can meet that requirement and prove that your investment was derived from lawful sources, then you will qualify for an Eb5 Green Card if the investment creates ten full time jobs. One of the main advantages of the regional center option is that indirect jobs are counted in the job tally making the Eb5 green card easier to obtain.
#3 Find an Employer Sponsor
Oftentimes, E2 investor-entrepreneurs have skills that are rare in the job market. If you posses such in demand job skills, you may be able to find an employer who would be willing to sponsor you for an employment based green card.
To obtain an employment based green card, your future employer would likely have to go through the PERM process. PERM stands for “Program Electronic Review Management.” It requires the employer to go through a recruitment process to show the US government that there are no US workers who meet the minimum qualifications for the job. Unfortunately, the costly and tedious process oftentimes discourages employers from attempting sponsorship.
#4 Family Member Sponsorship
There are a number of people who can sponsor foreign national family members for a green card. Unfortunately, many family based immigration categories are subject to a long wait before a green card can be issued. However, if you have a US citizen spouse or child who is over the age of 21, you qualify as an immediate family member. Such immediate family members are not subject to the preference system that limits the number of new green cards that are issued each year. Thus, if you qualify as an immediate relative you could have a relatively smooth and fast path to a green card.
#5 Go abroad, establish a business, then seek a green card
One fairly complex path to a green card exists for people who leave the United States and their E2 enterprise to establish a new company abroad. If you are interested in this route, you could establish the company, then allow someone else to run it while you work in the business as a manager. After working in the business for one year in a managerial capacity, you could transfer to the US to manage a new office on an L1a Visa. If you work as a manager in the US on the L1a Visa, the company could attempt to sponsor you for a green card after going through the PERM process.
Additional Considerations for the Green Card Process
There are a few things that are important to mention about going from E2 to Green Card status. One thing to keep in mind is that there are tax implications for those who obtain a green card. Once you obtain a green card, the US government will tax you on worldwide income. This is oftentimes a justification for remaining in E2 status. Under the E2, you are only taxed for income that you earn in the US. Another thing to keep in mind is that once you obtain a green card, your status will be in jeopardy of you travel outside of the US for an extended period of time.
This post was created to give you a starting point for considering the options for going from an E2 Visa to a Green Card. However, given the complexities involved, you should contact an immigration lawyer who could give you advice that is tailored to your particular situation.