application before USCIS; the State Department’ s E-2 visa rules under Chapter 9 of the Foreign Affairs Manual( FAM) do not contain such language and the consular officer may still deny the E-2 visa renewal under INA 214( b). Advise your client accordingly to avoid him or her being stuck outside of the United States, waiting for immigrant visa processing of the EB-5 case, thus placing the operations of his or her U. S. business at risk.
RESIDENCY REQUIREMENTS
A nonimmigrant E-2 visa holder has no limits or restrictions in terms of minimum stay inside or outside of the United States. As long as the visa and passport remain valid and the investor is otherwise admissible, an E-2 visa holder may enter the United States in E-2 status. An EB-5 investor, however, is a lawful permanent resident( even if conditional) and is subject to certain presumptions which may result in the EB-5 investor unintentionally abandoning his or her U. S. resident status should he or she spend too much time( more than 180 days per trip) outside of the United States.
BEWARE OF THE TAX MAN
An E-2 investor, who may or may not become subject to
U. S. tax laws, should first receive expert tax advice prior to considering an adjustment of status or immigrant visa processing to become a U. S. permanent resident. The reporting of worldwide income and assets required of U. S. residents might be something a particular E-2 client would just as soon do without.
EB-5 AS AN ALTERNATIVE TO PERPETUAL H-1B EXTENSIONS
In the case of an H-1B worker born in India, the EB-5 category can be a powerful alternative to filing H-1B petitions every one to three years while waiting for an EB-2 or EB-3 immigrant visa number. The waiting time for a current priority date / available immigrant visa number for a worker born in India was over nine years for EB-2( advanced degree) and over 10 years for EB-3( skilled or professional worker) in the spring of 2018.
The caveat here may be that as more Indian-born EB-5 investors file their I-526 petitions and move through the case processing pipeline, the likelihood grows that a visa number cutoff date will become necessary and that Indians may face a visa number retrogression that’ s similar to the Chinese, but likely to a lesser degree. Until that time, Indians with H-1Bs will continue to consider EB-5 as an option.
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