Contributed by Koby Polaski, Senior Attorney
When a client or potential client is exploring the different avenues through which he or she might immigrate to the United States – temporarily or permanently – the option of investing in a company in the United States often comes up.
The “traditional” investor visa that most have in mind when exploring this possibility is the EB-5. Perhaps the main advantage to the EB-5 is that it grants lawful permanent residence on day one, and the EB-5 visa category has traditionally remained “Current.” This trend looks like it will continue, as the Department of State’s Visa Bulletin for April 2014 states that the EB-5 category will remain current for the foreseeable future. http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_april2014.pdf
However, despite the allure of permanent residency, the EB-5 has other requirements that are often impossible for an entrepreneur to satisfy. Two such requirements include a $1,000,000 investment and ten jobs for United States workers within two years. (If the investment is made in an area that has high unemployment (or a rural area), the investment requirement drops to $500,000.)
Although the EB-5 is often thought of as the only option for an intending immigrant looking to invest in a United States business, 2013 data from the Department of State revealed that it is not, in fact, the most sought after visa. The number of E-1 treaty trader and E-2 treaty investor visas filed in fiscal year 2013 was substantially higher than the number of EB-5s. In 2013, there were over 40,000 E-1 and E-2 visas issued, compared with only 6,434 EB-5 petitions.
It is important to explore the pros and cons of each visa before deciding which to pursue.
Pros and Cons of the EB-5
As mentioned initially, the clear advantage to the EB-5 is that the applicant gains permanent residence upon issuance of the visa. However, the required investment is significant, as is the requirement that the business generate ten new jobs.
One way around the job creation requirement is for the investor to invest in a Regional Center, rather than directly investing his or her money. A Regional Center is an area designated by United States Citizenship and Immigration Services as eligible to receive immigrant investor capital. The Regional Center must focus on a geographical region within the United States and must strive to achieve a certain level of economic growth within this regional area. It must also create jobs – directly or indirectly – through capital investments made in accordance with the Regional Center’s business plan.
The major advantage to the Regional Center over direct investment is that the intending immigrant can take advantage of indirect job creation. Regional Centers can satisfy EB-5 job creation requirements by creating ten direct, indirect or induced full-time jobs. However, the risks that arise after investment are several; first, there is no guarantee that USCIS will approve the application for lawful permanent residence even after the investment; secondly, after investing in a Regional Center, the investor loses control over the investment because he has given his money to a third party – an investment vehicle that was created with the purpose of using EB-5 investors’ funds to create jobs on a larger scale. The upside to the Regional Center investment is that the EB-5 investor can gain permanent residence quickly without having to manage an investment or run a company’s operations.
The E-visa category encompasses treaty traders and treaty investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which the treaty trader or investor is a citizen or national. The E-1 Visa, for Treaty Traders, allows the visa holder to work in the United States on a visa where more than 50 percent of the business is trade between the United States and the home country. The E-2 Visa, for Treaty Investors, is for visa holders who will direct the operations of an enterprise in which they have invested a substantial amount of money.
An advantage of the E-2 visa is that it is not subject to a cap, like the H-1B, or a numerical limitation, like the EB-5. The E-2 does not require a certain level of education, nor does it require a minimum investment. The investment must be substantial and cannot be “marginal.” An investment is considered marginal if it does not have the present or future capacity to generate more than minimal living for the investor and his family.
The biggest difference between the EB-5 and the E Visa is that the E Visa does not result in lawful permanent residence. The E Visa is a nonimmigrant visa that can be renewed indefinitely as long as the investor continues to operate the business venture. The E visa is initially valid for up to five years, with the possibility of two year extensions.
Ultimately, after weighing the pros and cons of each visa, only the individual investor can choose which option is right for him or her.
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