Which US Investor Visa?
E-2 & EB-5 Investor Visa Guide
The USA continues to hold strong appeal and opportunity among foreign investors and entrepreneurs. If you are considering making investments in a US-based company, you may be eligible to apply for an investor visa to allow you to come to the US to develop or direct operations.
In most cases, your visa options will be for the E-2 visa which allows temporary permission to stay in the US for your business, or the EB-5 program, which allows holders to remain in the US on a permanent basis on the grounds of their investment activity.
In this article, we consider both routes, including eligibility requirements and the application process.
If you are a non-US national looking to develop or direct the operations of an enterprise in the USA in which you have invested a substantial amount of capital, you may apply for a ‘nonimmigrant’ US investor visa, the E-2 visa.
The E-2 treaty investor visa is an investor visa for citizens of countries with which the USA maintains a treaty of commerce and navigation.
It permits such foreign nationals to come to the United States on a temporary basis to invest a substantial amount of capital in a US business. The E-2 visa does not directly lead to a Green Card.
This category of visa can also be granted to employees who hold the same nationality as the principal investor, where they are engaging in duties of an executive or supervisory nature, or have special qualifications.
E-2 treaty investor requirements
To be eligible for an E-2 visa, you must demonstrate the following:
- you are a national of a country with which the US 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 US.
- the investment is more than a marginal enterprise solely for earning a living for you and your family.
- you are seeking to enter the US solely to develop and direct the investment enterprise.
To establish that you will be developing and directing the investment enterprise, you will need to show at least 50% ownership of the enterprise, or possession of operational control through, for example, a managerial position.
How to apply for an E-2 treaty investor visa
To apply for an E-2 visa from outside the US, you must complete Form DS-160 (the US government form used by consular officers to process visa applications) and submit this electronically, together with a cover letter and supporting documentation.
The cover letter will need to describe the enterprise and the beneficiary. It should also address all the requirements for E-2 visa eligibility. The documentation in support of your application will need to contain a detailed five-year business plan with relevant financial information.
The review process can take around 30 days, during which additional documentation may be requested during this process. Once the review is complete, you will be contacted to arrange an interview date. You must attend an interview within 90 days of this initial notification.
How long can you stay in the US with an E-2 treaty investor visa?
The maximum length for which an E-2 visa can be issued will vary from country to country. In the UK the maximum duration is 5 years. Upon entry to the US, E-2 investors are allowed a maximum stay of 2 years regardless of the length of the visa.
While there is no limit to the number of extensions an E-2 investor may be granted, the visa does not lead to permanent status and, you will need to find an alternative route, for example, an EB-5 immigrant investor visa.
EB-5 investor visa
The EB-5 program was introduced to stimulate the US economy through job creation and capital investment by foreign investors. Under this program, qualifying investors
EB-5 investor visa requirements
To be eligible for an immigrant investor visa, a foreign national must invest, or be actively in the process of investing (without borrowing), the following minimum qualifying capital in a new commercial enterprise:
- $1,800,000 US dollars, or
- $900,000 US dollars in a high-unemployment or rural area, considered a targeted employment area (TEA).
A targeted employment area is an area that, at the time of the capital investment, is a rural area or an area experiencing unemployment of at least 150% of the national average rate.
Within 2 years, the investment must also create full-time jobs for at least 10 qualifying employees. A qualifying employee includes US citizens, lawful permanent residents or other immigrants authorised to work in the United States, but excluding the investor, the investor’s spouse or their children.
All EB-5 investors must invest in a ‘new’ commercial enterprise. This is defined as a commercial enterprise established after 29 November 1990 or, alternatively, a commercial enterprise established on or before 29 November 1990 that is:
- purchased, and the existing business 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, occurs.
A ‘commercial enterprise’ means any “for-profit” activity formed for the ongoing conduct of lawful business including, but not limited to:
- a sole proprietorship
- partnership (whether limited or general)
- holding company
- joint venture
- business trust or other entity, which may be publicly or privately owned
How to apply for an EB-5 investor visa
You will need to complete various forms, including Form I-526 (immigrant petition by alien entrepreneur). The process will differ, however, depending on whether you are applying from outside or within the US.
Following approval of your petition (I-526) you will need to take either one of the following two steps:
- file Form I-485 (application to register permanent residence or adjust status), with US Citizenship and Immigration Services (USCIS) to adjust status to a conditional permanent resident within the US, or
- file Form DS-260 online (application for immigrant visa and alien registration), with the US Department of State to obtain an EB-5 visa abroad to seek admission to the US.
Needless to say, the process for obtaining your visa from your US Embassy or Consulate can be complicated, requiring detailed documentation in support of your application. You will also need to undergo both an interview and medical examination.
Upon approval of a Form I-485 application, or upon admission into the US with an EB-5 immigrant visa, you and any family members will be granted conditional permanent residence for a 2-year period.
Please note an immigrant must maintain physical presence requirements and cannot remain outside of US for more than one year without a re-entry permit; however, USCIS may consider any length of prolonged absence as abandonment even if less than a year.
Within 90 days immediately before the second anniversary of your admission to the US, you will need to file Form I-829 (petition by entrepreneur to remove conditions on permanent resident status). If this petition is approved by USCIS, the conditions from your lawful permanent resident status will be removed.
How much money is required for investor visa in USA?
One of the primary factors when determining eligibility for a US investor visa is how much investment needs to be made to be eligible for either route.
While the EB-5 stipulates a minimum investment threshold of $1.8 million, or $900,000 for a TEA, the E-2 temporary visa does not have an arbitrary or fixed minimum investment amount. Instead, E-2 applications are considered on their own merit against the specific needs and type of E-2 company and its market. For example, the set up costs for a manufacturing company would be expected to be substantially higher than those of a consultancy company. The investment amount for the E-2 visa should reflect the specific needs of the company in meeting its business plan.
Does property count for a US investor visa?
We are often asked if you can rely on real estate investments for an investor visa application. The answer depends on the circumstances, which we are able to advise you on.
For example, the EB-5 requirements state certain real estate investments are noncommercial activity and would not meet the commercial enterprise requirement. In addition, the EB-5 rules require the investment to result in the creation of 10 full-time jobs for qualified US workers. Investment in real estate usually would not usually meet this requirement.
However, practical solutions may be available, such as purchasing the commercial property where the company will operate from, or making the EB-5 investment through a designated regional center, which may invest its funds into real estate developments.
The application process for an investor visa for the USA can be complex and protracted, not least the stringent eligibility requirements and the nature and extent of documentation to be provided in support. The potential consequences of your application being denied could be significant, both financially and professionally.
NNU Immigration specialize in applications for US investor visas, such as the E-2 visa. If you have a question about an investor visa, or any other US immigration-related matter, please contact us for advice.
This article does not constitute direct legal advice and is for informational purposes only.