Editor´s note:

Some of our favorite investment visas are the US visas, especially the E-2 and EB-5 Investor visas. Both open the doors for conducting business in the US, however, the EB-5 also opens the path to a green card and eventually citizenship. At Mundo, we strongly recommend the E-2 visa as it is renewable indefinitely and offers the possibility to work, conduct business and spend time in the US.

Nevertheless, this can be planned in such a way that you don´t spend the number of days per year required to become a tax resident. Thus, you will have the incredible advantages of operating in the US market without being subject to worldwide tax. However, this article is merely informative and we strongly recommend that you consult with a tax expert in this regard.

There are incredible advantages (even tax advantages) for foreigners who wish to conduct business in the US, and we will be discussing them soon in another publication. On this occasion, our E-2 visa expert helped us draft this article in which we describe the differences between E-2 and EB-5 visas, their requirements and conditions, and other useful information. Remember that you can get a consultation with our expert by contacting us through any of our channels. Enjoy the article.

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The application process for investor visas EB-5 and E-2

A foreign investor must invest in the US to qualify for the two investor visa options: E-2 and EB-5. The immigrant visa option is EB-5, which leads to a green card. The nonimmigrant option is an E-2 visa, which does not lead to a green card, but can be renewed indefinitely.

Here’s the application process for each visa option from start to finish.

EB-5 Immigrant Investor Program

Step 1: Invest in project

The EB-5 investor applicant must invest in a project or business that will meet the program requirements: 

• Invest at least $.1.8 million or $900,000 into a U.S. venture.

• Create a minimum of 10 full-time U.S. jobs. 

Step 2: File the petition

After a foreign national invests in the EB-5 project or business of their choice, they can start the immigration process. To apply for an EB-5 Immigrant Investor Visa, the investor will file form I-526, the Immigration Petition by Alien Investor, with the US Citizenship and Immigration Services (USCIS).

The form is available on USCIS’s website, as well as for instructions on how to fill it. When working with a US immigration attorney, they will collect the necessary information to complete the application package for the investor. A labor certification is not required for a foreign national investor, like with some other employment-based visas. Form I-526 needs USCIS approval before filing for the conditional green card. Depending on the investor’s place of birth, the waiting period may be mere months or a few years before he/she can acquire the green card.

Timing issues to consider:

EB-5 Immigrant Investor Visas are issued in the chronological order in which they were filed. The filing date of the application is the priority date.

The EB-5 visa cannot be issued until the priority date is current. For nationals from some countries with many investors like China and Vietnam, a priority date might be several years before it is current. This means that some investors have a long waiting period before they can get their conditional green card.

Fees to consider:

The investor will incur government and other fees, in addition to their investment, attorney, and other business costs, for the following:

• Form I-526:

Immigrant Petition by Alien Investor.

• Form DS-260 or I-485: immigrant visa application or adjustment of status application.

• The biometric exam and vaccinations.

• Other administrative costs – the translation of the forms, obtaining required documentation, photocopy fees, travel costs to the US embassies for the interview with the consulate.

• Form I-829: Petition to Remove Conditions on Permanent Resident Status.

Please note that: The fees are non-refundable regardless of the adjudication outcome. EB-5 visa filing fees are paid to the USCIS.

Step 3 – Conditional permanent residency

After the I-526 is adjudicated and approved by the USCIS, the next step will be to become a 2-year conditional permanent resident, also known as a temporary green card. The process differs depending on whether the investor is currently residing in the United States or abroad. If the investor is currently in the US, they will file an Adjustment of Status. If the investor lives abroad, they will file a visa application with the National Visa Center (NVC). The NVC shall then instruct you to choose an agent and an address to use, which should be of your choice.

Can the investor’s family members also apply for the EB-5 Immigrant Visa?

Once the I-526 application is approved, the investor’s spouse and unmarried minor children under 21 years of age can apply for the visas at the same time. Just like the investor, they must also fill out the required forms and have the necessary civil documents for approval. 

Same-sex couples plus their children are now able to apply for the same visas and receive the same benefits of immigration as opposite-sex couples.

If filing DS-260, there will also be a consular interview. The investor’s immigration attorney will help prepare the investor for the interview. Read more about it in the section below titled “The Visa Interview”.

Once approved, the investor, and the family if applicable, can now live and work in the United States. The investment must remain “at-risk” for 2 more years. The conditional permanent residency is valid for two years.

Step 4 – File to remove conditional residency

The final step is to file an I-829 application to become an unconditional permanent resident. For the I-829, the investor must document that he/she has met all the requirements of the EB-5 investment, that the investment was sustained, and that ten full-time jobs were created. Timing of the I-829 is crucial as it needs to be filed within the 90-day window before the expiration of the conditional residency. If it’s not filed on time, the investor would risk losing permanent residency. Once approved, the green card is renewable every 10 years with the possibility of becoming a U.S. citizen.

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E-2 Treaty Investor

Step 1 – Acquire citizenship in a treaty country (optional)

The E-2 visa is only available to citizens of countries that have bilateral investment treaties with the US. If you are not a citizen of a treaty country, you can acquire citizenship in one that also has a citizenship-by-investment program like Grenada, Turkey, or Montenegro.

Step 2 – Invest in the business

Unlike an EB-5 visa, there is no minimum investment amount for an E-2 visa. It must be “substantial” and will vary depending upon the type of business. For example, a consulting firm may require a relatively small investment, but a manufacturing company will require a much larger amount. The investor needs at least 50% ownership of the enterprise.

Step 3 – Apply for a visa

If in the United States, the investor can file form I-129 to change their status to the E-2 visa. If outside the United States, the process can vary at the different consulates. An immigration attorney can guide the investor through the best locations and steps. Most E-2 visas are applied for through a U.S. consulate. The timeline for review will vary from a few weeks to a few months.

Step 4: Interview with the consulate

The U.S. consulate will conduct a short interview with the investor and an experienced immigration attorney will be able to prepare the investor for this. The interview will verify the investor’s identity and that they meet the visa qualifications. The consulate and investor’s attorney will be able to advise on the required documents for the interview.

Step 5: Maintain status

It is important to note that the E-2 visa is a nonimmigrant visa. This means that it is not a permanent resident status, and the investor needs to continue to own the qualifying business. The E-2 will need to be renewed every 2-5 years; however, it can be renewed indefinitely. 

Documentation Required

Documentary evidence will be needed at various steps in either process. Here is a list of some of the documents you will need for the different filings and interviews for either investor visa. 

• A valid passport (for E-2 needs to be for a treaty country), valid for at least 6 months after the date of entry to the US.

• Family member passports.

• Two photographs –sized at 2x2 for investor and each family member.

• Financial documents.

-Proof of investment

-Proof of legal source of investment funds

-Last 5 years of tax returns

• Project and business documents.

-Business plan 

-Evidence of creation of 10 full-time jobs (EB-5 only)

-Proof of business ownership

-Business license

-Tax returns

-Bank statements

-Payroll documents (for EB-5, showing ten jobs created)

Biometrics and medical exam

Before the visa interview, the investor will need to provide biometrics data and complete a medical exam with a USCIS-approved physician. The biometrics appointment confirms the investor’s identity and completes the required background and security checks.

• It is important to note that biometrics and any required vaccinations need to be completed before the visa interview. 

• The medical exam must be performed by an authorized physician.

• The investor can bring a translator if not fluent in English.

• Depending on the country of origin, there may be new vaccines the investor will need to get to enter the US.

The visa interview

Once the visa application has been approved, if the investor is overseas, they can then schedule an interview with a US consulate. If the investor is already residing in the US, no interview will be necessary. The investor should work with his/her immigration attorney to prepare for the interview. The interview process can vary between consulates, so expect to have an open dialogue with your attorney about what you need to bring and what to expect. If the investor is not comfortable speaking in English, they should inquire about bringing a translator if the consulate will not provide one. 

All applicants are required to bring their valid passports for the interview in addition to other required documents. The consular officer will conduct the short interview to verify the investor’s identity and all the information provided in the investor’s application. 

A digital fingerprint scan will be taken on the interview day and, generally, you will leave with your original documents and other translations when the interview is over.

How long does the entire process take?

The length of time depends on many factors like the type of visa, the investor’s country of birth or citizenship, and the application filing location. The process timeline can vary greatly from one case to another, so it is difficult to predict with complete accuracy.

What is certain is that EB-5 is always a multi-year process regardless of individual situations. 

An E-2 visa can be obtained in as quickly as a few weeks to a few months, but generally takes less than a year. 

Can an applicant become ineligible?

Yes, and at any point in the process. Certain situations may cause an investor to become ineligible for the visa, such as illegal activity, inability to prove that the investment funds were sourced lawfully, or having affiliations with unlawful organizations. Additionally, the investor’s US immigration history will also be considered, such as if an applicant ever overstayed a visa during a previous visit to the US or was deceptive on past filings.

If this occurs, the investor will be informed, and the investor’s attorney may be able to challenge the decision or find another suitable path forward. 

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What happens after the investor gets his/her visa?

When your application is approved, the officer will stamp your passport, and your dependents’ passports if applicable, to enable US entry. The officer will also provide a sealed envelope that contains all the documents you brought with you for the interview.

It is extremely important to note that you MUST NOT open this sealed document. This shall only be opened by the US immigration officer when you enter the US. You must enter the US before the expiration date that will be printed on your visa. When traveling, you should enter before, or at the same time as, your family members with the same visas -- never after.

The USCIS immigrant fee

This fee MUST be paid after you have received the visa and before you travel to the US. Please note that the USCIS will not issue you a permanent resident card, the green card or Form I-551, until you pay the fee.

What to expect at the US port of entry

The EB-5 or E-2 visa stamp will allow the investor and his/her family to travel and request permission to enter the US. You should however be aware that the visa will not guarantee your entry into the country.

US Customs and Border Protection (CBP) officials do have the authority to deny or permit entry into the US, even with a valid visa. Investors should review all the important information about admissions and the requirements for entry into the US, and be prepared to answer their questions at the port of entry.

Apply for a social security number

If the investor has selected on the visa application to receive a Social Security Number, then, upon admission into the US, their social security card will be mailed to the address designated on the application. The investor can also apply for one at a Social Security Office by bringing his/her passport, I-94, and social security application. 

Conclusion

The two processes above show the difference between applying for the E-2 and EB-5 visas. Although they are both investor visas, EB-5 is a longer and more involved process but will eventually lead to a green card and can lead to citizenship. The E-2 visa (even if third-country citizenship is needed) is quicker to obtain and can be much less expensive than an EB-5 visa. However, the E-2 visa is a nonimmigrant visa and will never lead directly to a green card. At Mundo, we recommend the E-2 visa as it allows foreigners to run a business in the country with the possibility of indefinite renewal and without the tax responsibilities that a green card or US passport will bring. 

Here are a few takeaways to consider:

• Carefully consider your long-term goals to help decide between an EB-5 and an E-2 visa.

• Seriously consider engaging with an experienced immigration attorney who specializes in investors. Your Mundo attorney will guide you through the entire process and ensure your documentation and applications are well-prepared.

• Keep close track of deadlines, expiration dates, and requirements to remain in lawful immigration status. An immigration attorney can also track this for you.

Good luck on your immigration journey.

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