Comparison of Investor Visa Options

By November 28, 2017Articles, Immigration

By: Melissa G. Nolan

EB-5 IMMIGRANT INVESTOR E-2 NONIMMIGRANT VISA L-1 INTERCOMPANY TRANSFEREE
Who is eligible to apply for the status? Any individual who invests the required amount of money in a new commercial enterprise in the U.S, which will create at least 10 U.S. jobs. A citizen of a “treaty country” who invests money into a U.S. company; a majority of the U.S. company must be owned by nationals of the same country. Available to allow foreign companies to transfer certain workers to related U.S. entities (subsidiaries, parent companies, affiliates, etc.)  There are 2 different L-1 visa categories:

L-1A status is available for managers or executives.

L-1B status is available for workers with specialized knowledge.

If approved, what does the immigration status provide? Permanent residency (“green card”), allowing the investor to remain in the U.S. indefinitely. 2 year visa to remain in and work in the U.S.; may be renewed every 2 years, so long as the U.S. enterprise remains in operation, and the individual is still working in the enterprise. If the worker is in L-1A status (manager or executive), the maximum amount of time he or she may remain in the U.S. in L-1A status is 7 years.  The worker also may qualify for permanent residency as a multinational manager or executive.

If the worker is in L-1B status (specialized knowledge) the maximum amount of time he or she may remain in the U.S. in L-1A status is 5 years.

How much money must be invested in order to qualify for the visa? $1,000,000 USD, per foreign investor, unless the enterprise is located in an area of high unemployment, or in a rural area.  If the enterprise is located in an area of high unemployment or in a rural area, the required amount of investment is $500,000 USD, per foreign investor. There is no minimum amount which must be invested.  The necessary investment is simply the amount generally necessary to establish a business in the particular industry (for example, an IT consulting company would likely require less investment than a car manufacturer). There is no minimum amount which must be invested in the U.S. company.  The petitioner simply must prove the relationship between the U.S. company and the employee’s foreign employer, and prove that both are bona fide companies.
How many jobs must be created by the enterprise? To be approved, the investor must establish that within a reasonable period of time (generally, within 2 years) after the application is filed, at least 10 jobs for U.S. workers will be created. There is no minimum number of jobs that must be created.  The investor must establish that he or she intends to invest in a business which will contribute to the economy. There is no requirement that a certain number of jobs be created.  However, if the U.S. company is a small operation or does not have many employees, USCIS tends to deny petitions, finding the worker will need to be engaged in the day-to day affairs of the business, rather than performing managerial, executive, or specialized knowledge duties.
What is the most important documentation to submit in connection with an application for the visa? Detailed business plan establishing how much money has been/will be invested, how those funds have been/will be expended, and details about employment of workers.

Detailed documentation, including 5 years of filed income tax returns, tracing the source of the funds being invested, to establish that the funds were obtained lawfully.

Detailed business plan establishing how much money has been/will be invested, how those funds have been/will be expended, and details about employment of workers.

Detailed documentation, including 5 years of filed income tax returns, tracing the source of the funds being invested, to establish that the funds were obtained lawfully.

Proof of the relationship between the companies.

Detailed description of the duties and requirements for the worker’s position, including a breakdown of the percentage of time spent on each particular task.

In addition to the investor, who else may come to the U.S. to work in the enterprise? The investor’s spouse and dependent children (under age 21) may obtain permanent residency if the investor’s application is approved.

If other employees of the foreign enterprise are needed in the U.S., they will need to obtain their own employment-based visas, such as an H-1B or a L-1 visa.

The investor’s spouse and dependent children (under age 21) may obtain dependent E-2 visas and remain in the U.S. so long as the investor’s visa remains valid.

If other employees of the foreign enterprise are needed in the U.S., they may qualify for E-2 visas as key employees of the enterprise.  If not, they will need to obtain their own employment-based visas, such as an H-1B or a L-1 visa.

The investor’s spouse and dependent children (under age 21) may obtain dependent L-2 visas and remain in the U.S. so long as the investor’s visa remains valid.
What is the application process to obtain the visa? The investor files an I-526 Petition with United States Citizenship and Immigration Services.  Along with the petition, supporting documentation is submitted to establish that the investor meets all of the requirements.

If the I-526 Petition is approved, and if the investor is outside the U.S. at the time, he or she would file an application for an immigrant visa, along with supporting documentation to establish he or she is admissible to the U.S., with the U.S. consulate.  At the same time, the investor’s spouse and dependent children (under age 21) may also apply for immigrant visas.

If the application for the immigrant visa is approved, the investor and the spouse and dependent children enter the U.S. as lawful permanent residents.  They are free to remain in the U.S. and work freely.

However, the investor obtains conditional permanent resident status.  Two years later, the investor will need to file an application to remove the condition, by demonstrating that the full investment has been made, the required number of employees has been hired, and the business plan has been adhered to.

If the investor is outside the U.S., he or she files an application for an E-2 non-immigrant visa, along with supporting documentation to establish that he or she meets the requirements for the E-2 visa, with a U.S. consulate.  At the same time, the spouse and dependent children (under age 21) submit applications for E-2 dependent visas.

If approved, the investor and his or her family members may enter the U.S. and work in the enterprise for 2 years.  Prior to the end of that time, if he or she desires to remain in the U.S. and continue working, he or she must file an application to renew the E-2 visa status.

The U.S. entity files a petition in the U.S., along with supporting documentation, to establish the company has a valid relationship with the overseas entity, and to establish that the worker qualifies as a valid manager or executive, or specialized knowledge employee.

If approved, the worker and his or her dependent family members may apply for L visas at a consulate abroad.

If approved, the employee and his or her family members may enter the U.S. and work in the enterprise for 3 years.  Prior to the end of that time, if the company desires to maintain the employment in the U.S., it may file a petition to extend the employee’s stay in the U.S., for the maximum amount of time described above.

Do the funds need to be invested before the application is filed? The investor is required to establish that the required amount of funds either has been invested in the U.S. enterprise, or that the funds are in the process of being invested.  However, the more the funds have actually been spent, the stronger the application. The investor is required to establish that the required amount of funds either has been invested in the U.S. enterprise, or that the funds are in the process of being invested.  However, the more the funds have actually been spent, the stronger the application. Not applicable

 

Disclaimer

Melissa G. Nolan

Melissa G. Nolan

Melissa Nolan's practice involves immigration law, as well as estate and tax planning. From helping individual immigrants and businesses wanting to obtain visas for employees, to ensuring companies' I-9 forms are compliant through audits, Ms. Nolan is dedicated to assisting clients with the complexities of immigration. Melissa’s estate and tax planning practice includes the preparation of estate planning documents such as wills, revocable trusts, powers of attorney, and health care declarations.
Melissa G. Nolan

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