Continued from page 8
E-2 vs. EB-5 at a glance
Here is a chart contrasting many of the key elements of E-2
temporary visas with EB-5 green cards:
Criteria
E-2
EB-5
Treaty
Yes
No
Capital
$100K to $250K
$500K or $1 M –
Soon to increase
Work at Business
Full-time
May be director or
limited partner
U.S. Employees
Some
10 full-time
permanent required
Processing time
45 to 90 days usually
12 to 24 months –
with China quota
retrogression, it
will be longer for
Chinese investors
Dependents
Spouse and children
under 21
Spouse and children
under 21
Dependent’s
work permit
Spouse only
Spouse and children
under 21
Validity Period
5 years but may be
less per reciprocity
schedules. Extension
is possible as long as
business is successful
2 year conditional,
then for life
$30,000 to $50,000
For direct
investments $100K;
RC funds in escrow
or in project are at
risk upon remittance
Spend $ to prove
funds are at risk
Direct Capital
Investment
Required
Required in own
business and RC,
but RC may loan
$ or equity to job
creating business
Yes, provided
majority held by
citizen of the treaty
country
Yes
Purchase a business
Yes
Yes, provided it is a
NCE and expanded
to create the jobs
Profitability
After initial few years
Highly
recommended
Proof of Source
of Funds
Required by some,
not all Consuls
Required
New Commercial
Enterprise
No
Yes – created after
11/29/1990, or
business reorganized
Hire
non-immigrants
Yes
Do not count
towards 10 jobs
created
Take in U.S. capital
Yes, provided it is
minority interest
and does not count
towards “substantial
investment”
Yes
Investment of
non-cash assets
Yes
Practically, no
for a RC; direct
investment possibly
Borrowed capital
Yes, provided the
U.S. enterprise is not
collateral
Yes, provided
U.S. business is
not collateral and
purpose of loan is
EB-5 or silent
Visas for domestic
staff and parents
Yes, assuming they
meet B visa criteria
No
Intent to Depart
Yes
No
Pool Capital
10
Conclusion
Understating the EB-5 and E-2 criteria will help investors
choose the best options for themselves and their family. While
the time to obtain the E-2 is shorter, and the investment amount
is much less than the EB-5 green card, an E-2 remains a temporary visa and there must be a treaty. For many it is preferable
to immigrate to the U.S. via the EB-5 because as we have seen,
economies fluctuate, countries can become unstable, and visa
rules change over time, whether we look at recent history or
back to 1812.
★
The United States has E-2 treaties with the following countries: Albania,
Argentina, Armenia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium,
Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile,
Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech
Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France,
Georgia, Germany, Grenada, Honduras, Iran, Ireland, Israel (this treaty is not
yet active), Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kosovo,
Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, The Former
Yugoslav Republic of (FRY), Mexico, Moldova, Mongolia, Montenegro,
Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay,
Philippines, Poland, Romania, Serbia, Senegal, Singapore, Slovak Republic,
Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand,
Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom,
Yugoslavia.
1
2
The principal source of authority/rules for E-2 visas.
3
9 Foreign Affairs Manual 41.51 N10.2.
4
9 Foreign Affairs Manual 41.41 N8.
The EB-5 rules permit funding with a note or other assets, but practically
speaking, this is extremely rare and RCs require all cash up front.
5
Letter on April 27, 2015 from DHS Secretary Jeh Johnson to Senator
Grassley and S. 1501 by Senators Leahy and Grassley.
6
Congressional proposals, if they become law, would eliminate visas for
dependents, which some predict will eliminate retrogression.
7
8
9 Foreign Affairs Manual 41.51 N11.
A “troubled business” in certain circumstances may save existing jobs instead
of creating new ones.
9
10
USCIS May 30, 2013 EB-5 memorandum.
U.S. Citizenship and Immigration Services, E-2 Treaty Investors, http://
www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors
(last visited May 26, 2015).
11
Martin J. Lawler
EB5 INVESTORS MAGAZINE
Martin J. Lawler is an experienced E-2 and EB-5
visa lawyer. He is the author of Professionals: A
Matter of Degree. Lawler also has authored many
book chapters and articles. In May 2010, CNBC
ran a story on EB-5 investor-based green cards
in which Lawler was interviewed. The Wall Street
Journal has published op-ed immigration-related
pieces by Lawler, and he was a guest speaker on
National Public Radio’s “Science Friday” program
about visas for scientists. Lawler has been a
member of AILA’s EB-5 investor visa committee
from 2008 to 2010 and 2013 to 2014. He has
spoken at many AILA’s EB-5 conferences about
EB-5 visas. He is a member of the IIUSA (EB-5
Regional Center Trade Group).