E1/E2 INVESTOR VISA AND TREATY VISAS
To be eligible for an E Visa, the following key elements must exist:
- There must be a treaty between the U.S. and the country of the company or national applying for the visa. Treaty Countries 9 FAM 41.104
- The majority ownership or control of the enterprise engaged in trade or investment with the U.S. must be held by nationals from the country which has signed a trade/investment treaty with the U.S.
E-1 Treaty Trader Visa
Aliens who are citizens of a nation that has signed a trade and investment treaty with the U.S., who are coming to the United States:
- Solely to carry on or engage in substantial trade between his/her country and the U.S., including trade in services or trade in technology.
- Principally between the United States and the foreign state of which the alien is a national.
“Substantial” with reference to trade means a continuous exchange of goods and services between the U.S. and the treaty nation of the alien applicant, involving numerous transactions that began prior to the filing of the E-1 application.
Trade principally between the U.S. and the foreign state means that at least 50% of the total amount of trade conducted by the alien or his/her enterprise or employer must be between the U.S. and the treaty nation.
E-2 Investor Visa
The aliens must be coming to the United States:
- solely to develop and direct the operations of an enterprise in which he/she has invested; or
- solely to develop and direct the operations of an enterprise in which he/she is actively in the process of investing a substantial amount of capital; or
- as an employee who will perform services that require special qualifications essential to the operations of the treaty investor’s enterprise, who has the same nationality as the treaty investor employer; or
- the nationals owning at least 50% of the enterprise, who must be under treaty investor status if residing in the U.S.; and
- showing an intention to depart from the United States upon the termination of his or her status.
The definition of “substantial” with reference to investment is at the discretion of the Secretary of State. However, in exercising this discretion, the Secretary of State conducts a “Relative Proportionality Test” as a guideline where they asses whether:
- the value of the investment is substantial as a percentage of the fair market value of the enterprise, or
- whether the value of the investment is substantial as a percentage of the capital usually required to establish the specified type of business in the specified industry, as per the visa application.
The investment enterprise must not be “marginal”, meaning it must have the capacity in the present or future to provide income more than a living wage to the investor and his/her family. Although each case is evaluated individually by the State Department, generally the following rules apply in terms of minimum investment expectations:
- For investment enterprises valued at less than $500,000
- A minimum of 75% of the total value of the enterprise or for small to medium sized businesses, more than half of the value of the business
- Exceptions may be made for certain start-ups and service businesses, where smaller initial investments may be appropriate depending on the particulars of the type of business
- For investment enterprises valued between $500,000 and $3 million
- A minimum of 50% of the value of the business or a flat $1,000,000 is expected to be invested
- The State Department may make an exception if it can be demonstrated that in the specified industry, it is common practice to start a business with less than 50% of the value of the enterprise.
- For investment enterprises valued at over $3 million
- A minimum of 30% of the value of the business or a flat $1,000,000 is expected to be invested
EB5: INVESTMENT BASED PERMANENT RESIDENCY OPTION
Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”
A “Regional Center:”
- Is an entity, organization or agency that has been approved as such by the Service;
- Focuses on a specific geographic area within the United States; and
- Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
Current Active List of “Regional Centers” includes:
- California Consortium for Agricultural Export
- Philadelphia Industrial Development Corporation
- South Dakota International Business Institute
- The Gateway Freedom Fund/AKA: Golden Rainbow Freedom
- Iowa Department of Economic Development (IDED)
- Capital Area Regional Center
- The Redevelopment Agency of the City of Vernon Regional Center
- Mayor’s Office of Economic Development (New Orleans)
- Whatcom Opportunities Regional Center, Inc. (WORC, Inc.)
- Vermont Agency of Commerce and Community Development
- Pennsylvania Department of Community & Economic Development Regional Center
- CMB Export LLC
- Global Century Development Group I, LP (Global Century)
- Metropolitan Milwaukee Association of Commerce (MMAC)
- Alabama Center for Foreign Investment (ACFI)
Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested — or are actively in the process of investing — the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.
In general, “eligible individuals” include those:
1. Who establish a new commercial enterprise by:
- creating an original business;
- purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
- expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
2. Who have invested — or who are actively in the process of investing — in a new commercial enterprise:
- at least $1,000,000, or
- at least $500,000 where the investment is being made in a “targeted employment area,” which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB; and
3. Whose engagement in a new commercial enterprise will benefit the United States economy and create full-time employment for not fewer than 10 qualified individuals; or maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.
Is it important to note that the immigration service only grants the investor a conditional two year permanent residency status. The steps include:
Step 1: File Form I-526 Immigrant Petition for Alien Entrepreneur to establish EB5 investment eligibility.
Step 2: File I-485 Application to Adjust to Permanent Resident once Form I-536 is approved.
Step 3: File I-829 Application to Remove Conditional Residence for Alien Entrepreneur before the expiration of the two year conditional residency expires, the applicant must reapply for. Once this application is approved, the application will be granted a ten year permanent resident.