If you are a non-US national looking to live and work in the United States as an investor, either in the short-term or long-term, the following guide examines the American investment immigration options, including how to gain entry, as well as how to apply for residency and citizenship on this basis.

US investor visa options

If you are looking to gain entry to the USA using investment as the basis of your application, the E-2 visa will be the primary option to consider.

The E2 investor visa is for citizens of countries with which the USA maintains a treaty of commerce and navigation including, for example, Australia, Canada and the UK.

Where the eligibility requirements have been met, the E-2 allows a national of a treaty country to work in the United States through their investment in a U.S. business enterprise.

This category of visa can also be granted to certain employees who hold the same nationality as the principal investor, in particular executives and supervisors, or those with special skills essential to the efficient operation of the enterprise.

To be eligible for an E2 visa, you must satisfy the following requirements:

• you are a national of a country with which the U.S. maintains a treaty of commerce and navigation.
• you have invested, or are in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S. There is no official minimum investment amount although, as a general guide, you will need at least US$100,000 to US$150,000 to invest.
• the investment is more than a marginal enterprise. A marginal enterprise is a business that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
• you are seeking to enter the U.S. solely to develop and direct the investment enterprise. Under the “fifty percent rule” you will need to show at least 50% ownership of the enterprise, or possession of operational control through, for example, a managerial position.
• as a senior or essentially skilled employee, you will need to show that you are destined to a similar role in the U.S.
• whether as an investor or an employee, you will need to show that you intend to depart the U.S. when your E2 visa status comes to an end.

If your application is successful, an E2 investor visa will initially be granted for a period of up to 5 years, although the maximum period will be determined by your nationality and the treaty which governs the Treaty with the US. Regardless of the maximum period, E-2 visa holders can stay for no longer than 2 years at a time.

Further, if you, or your employee, continue to meet all the relevant conditions, an extension of stay may be granted in increments of up to 2 years at a time.

Although there is no maximum limit to the number of extensions an E2 visa holder may be granted, you must continue to maintain an intention to depart the U.S. when your status expires.

Applying for US residency after investment

A nonimmigrant E2 visa is designed for those coming to the U.S. to work on a temporary basis, and whilst an E2 visa can generally be extended, you must continue to meet all applicable requirements of U.S. immigration laws and regulations.

As such, there always remains the risk that any E2 extension application will be refused, exposing you and your family to leaving the life you have established in the U.S, in some cases over several years.

If you are looking to remain in the United States indefinitely, you may consider the EB5 immigrant investor visa. Under this category, qualifying investors are eligible to apply for permanent residence, otherwise known as a Green Card.

To be eligible for an EB5 visa you must invest the following minimum qualifying capital in a new commercial enterprise:

• US$1 million, plus the creation of full-time jobs for at least 10 qualifying U.S. employees. A qualifying employee includes US citizens, lawful permanent residents or other immigrants authorised to work in the United States.
• US$500,000 in a targeted employment area, ie; a rural area or area with high unemployment of at least 150% of the national average. Most investors opt to invest in a targeted employment area, and thereby lowering the investment threshold to $500,000.

A ‘new’ commercial enterprise is defined as a commercial enterprise either established after 1990, or before 1990 that is restructured or reorganised in such a way that a new commercial enterprise results, or expanded through the investment so that at least a 40% increase in the net worth or number of employees is achieved.

Upon approval of your application for an EB5 visa, you will be granted conditional permanent residence status for a period of 2 years. You can then apply for what’s known as “removal of conditions” prior to the second anniversary.

If you can show that your investment was used entirely and, where relevant, created 10 full time jobs for U.S. citizens, you will be granted a green card.

Applying for US citizenship

Having continuously resided in the U.S. as a green card holder for a period of 5 years, you are then free to apply for U.S. citizenship, otherwise known as naturalization.

To be eligible for US naturalization, you must satisfy the following requirements:

• Be physically present in the U.S. for at least 30 months out of the 5 years immediately preceding the date of filing the application.
• Be able to read, write and speak English, and have knowledge and an understanding of U.S. history and government, commonly referred to as civics.
• Be a person of good moral character, in-keeping with the principles of the Constitution of the United States, and well disposed to the good order and happiness of the U.S. during all relevant periods under the law.

If your citizenship application is approved, you will be required to take part in a naturalisation ceremony in which you will take the Oath of Allegiance to the United States. You will then be officially regarded as a U.S. citizen.

Need assistance?

The rules relating to US investor visas are complex and both the E2 and EB5 visa applications demand detailed business and financial information, with extensive documentary evidence in support of your eligibility.

For advice on your investment visa options, speak to our US immigration attorneys.

This article does not constitute direct legal advice and is for informational purposes only.