Kathryn N. Karam
by Kathryn N. Karam
If you work with people who are seeking to start a new business – or invest in an existing business – in the US, they might have asked about “investor visas.”
The Spring Edition of this GGI FYI GMS News had an article about the EB-5 immigrant investor program, which requires in investment of USD 800,000 to USD 1,050,000 in an entity that will create at least 10 full-time jobs for US workers. But what if an investor isn’t prepared to put that much capital into a business venture? Or if it’s not certain that the business will create at least 10 full time jobs over the next three to five years or so? Or what if you have an investor who has no interest in moving to the US and just needs to be able to be in the US for a few years at most, or just needs to enter periodically?
There is another option available to some investors: the E-2 treaty investor visa. This visa allows people from some countries to invest in a new business or in an existing business in the US that will create local jobs, but the E-2 visa does not have a minimum investment amount and does not have a requirement for how many jobs must be created. Its requirements are more flexible:
The investor must be a citizen of a country with an E-2 treaty with the United States.
The investor must have invested in an enterprise in the United States.
The investment must be substantial, and this is usually reviewed on a sliding scale depending on the total startup costs or needed investment for the business.
The business in which the investor invests cannot be a marginal enterprise – it must generate more than enough income to provide for the investor and his/her family.
The investor must be entering the United States solely to develop and direct the investment enterprise.
For those who need to enter the US more quickly, the E-2 is a much faster avenue to entering the country. Many E-2 visa applicants need a way to enter the US to start up a new business or purchase an existing business. The E-2 is attractive because a person can usually apply for and receive an E-2 visa within a few weeks or, at most, a few months. (In contrast, a petition for EB-5 can take two years plus additional time for applying for a visa to immigrate to the US). Unlike other visas, the individual may apply directly at a US consulate or embassy avoiding the delays and fees with the United States Citizenship and Immigration Services (USCIS). Each consulate lists on its website how they process these applications.
For qualifying investors, they can also use this investment to transfer key employees to the US to assist in directing the enterprise. Under a recent interpretation, spouses of the E-2 principal are automatically permitted to work in the US in whatever field they wish. Once issued, the E-2 visa holder generally may travel internationally without having to apply for extension with USCIS depending on the reciprocity treaty with the treaty country and the US.
Finally, another reason some investors choose the E-2 visa is that it can be extended as many times as needed as long as the investor still qualifies. In other words, regardless of how long the visa is valid and the period of authorised stay the person is given when they enter the US, they can apply for another E-2 visa or extend their stay in the US if they still qualify for the E-2.
There are many investors who don't need to remain in the US long-term and prefer not to do so, either because they have other businesses or interests in other countries, or because remaining in the US for longer periods is not part of their overall investment strategy. For these investors, the E-2 allows them to travel in and out as needed for as long as they continue to develop and direct their business, avoiding questions Customs and Border Protection officers usually ask visitor visa holders about why they frequently travel to the US.
Why isn’t everyone applying for an E-2 visa?
The E-2 visa is only available to people with citizenship in an E-2 treaty country. Unfortunately, China and India are among the countries who do not have E-2 treaties with the US.
The E-2 visa is not a pathway to permanent residence. An E-2 visa holder may apply for permanent residence, but they cannot self-petition for a green card just because they have an E-2 visa. They must qualify either as an EB-5 applicant or through some other employment or family-based green card category.
Quan Law Group, PLLC is a full-service US immigration law firm located in Houston, Texas. They understand that each immigration case is different, and each client’s situation and needs are different. They offer a personalised approach as the optimal strategy for successfully representing their clients.
GGI member firmQuan Law Group, PLLCHouston (TX), USAT: +1 713 625 9200Law Firm Services
Kathryn N. Karam is a Senior Associate with the Quan Law Group LLP in Houston, TX. Kathryn is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization, and has been listed as a Rising Star by Texas Monthly Magazine. Contact Kathryn.