Many foreign nationals want to know how to obtain a visa to come to the U.S. by making an investment in a U.S. company. To understand how an investment in a U.S. company allows a foreign national to live and work in the U.S., it is important to recognize the distinction between a non-immigrant and an immigrant visa. A non-immigrant visa allows a foreign national to come to the U.S. for a limited purpose (such as to work for a particular company) for a limited period of time (such as one year or two years). An immigrant visa allows a foreign national to come to the U.S. and remain permanently. An immigrant visa is the so-called “green card,” which allows a person to live in the U.S. permanently, conditioned upon compliance with the immigration laws.
Under U.S. immigration regulations, there is one non-immigrant visa available for investors (an E-2 visa) and one immigrant visa available for investors (EB-5). What follows is a description of the requirements and the process for applying for each of these visas. Which option a foreign national should choose depends upon a variety of factors, including his or her country of citizenship, desire to remain in the U.S. permanently, amount of money available for investment, and the type of enterprise in which he or she will invest.
REQUIREMENTS FOR E-2 NON-IMMIGRANT VISA
- A specific treaty must exist between US and Country X.
- Investor must be a citizen of Country X.
- Investor must make an irrevocable commitment:
- It must be a real operating enterprise (if contracts are not already in place and workers not already hired, there must be proof that it will be a viable enterprise. A good way to show this is with proof of ongoing negotiations for contracts and a market research study by a professional consulting firm, attesting that the enterprise is viable to support US workers in the future.
- If the funds have not already been invested, there must be some proof that the investment is active and must soon be committed.
- The investment must be substantial:
- No specific dollar amount, just enough to be a true, operating enterprise–an amount normally considered necessary to start up that type of business.
- Funds must be at risk; cannot be a loan that is secured by company property (can be secured by investor’s personal assets); can be unsecured loans or gifts.
- Value of property, inventory, and equipment is considered.
- The investment must create jobs for workers, other than the investor and his family:
- Can reliable predictions of income be made to show it is reasonable the company will be able to pay employees?
- Prepare a thorough business plan.
- The investor must take an active role in the enterprise.
- Filing Procedures:
- Normally apply at a U.S. consulate abroad.
o If inside the U.S., in most cases investor may file a petition with USCIS, to change status to E-2 status.
- However, the first time investor travels outside of the U.S., he/she would need to apply at a U.S. consulate for an E-2 non-immigrant visa.
- Normally apply at a U.S. consulate abroad.
- If approved, investor will be given an E-2 non-immigrant visa, which, in most cases, is valid for two years. However, the status may be renewed for subsequent two year periods, for so long as the business is operational.
EB-5 IMMIGRANT INVESTORS
- The foreign national will enter the U.S. to invest in a commercial enterprise that will benefit U.S. economy.
- The new enterprise must:
- Be one in which the person is investing at least $1,000,000 (or $500,000 if in “targeted employment area”).
- Benefit the U.S. economy.
- Create full-time employment for 10 U.S. workers.
- The employees do not need to be hired at the time of application – a business plan setting out the need for at least 10 employees over the next 2 years is sufficient.
- Targeted employment area = rural area or an area that has experienced high unemployment of at least 150% of the national average.
- Filing procedures:
- File Form I-526 with USCIS.
- Initial evidence required with application:
- Evidence it is a new commercial enterprise:
- Evidence of capitalization – showing the required amount of capital is at risk.
- Evidence the capital was acquired by legal means.
- Evidence of creation of employment (actually hired or thorough business plan).
- Evidence the investor will be involved in the day-to-day management of the enterprise.
- Evidence the investment will benefit the U.S. economy.
- Evidence the area has been designated a high unemployment area – if applicable.
- Evidence of employment in a targeted employment area – if applicable.
- If the petition is approved by USCIS, it is forwarded to the consulate located in
the investor’s native country, at which time the investor will apply for his or her visa to enter the U.S. as a permanent resident.
- If the petition is approved, the investor becomes a 2-year conditional permanent resident. Form I-829 must be filed approximately 2 years later to remove the conditions, with evidence the individual invested the required amount and employed the required number of employees.
By: Melissa G. Nolan