The E-2 investor visa is an attractive option for foreign nationals to invest in and work for a business in the United States. While obtaining an E-2 investor visa does not directly grant applicants U.S. Permanent Residency (Green Card), there are some great ways to get from an E-2 visa to a green card.
E-2 investors are nonetheless able to renew their visas indefinitely if their business continues to function successfully. The foreign country and the U.S. must also remain in a treaty agreement. There are several options that allow an E-2 investor to acquire a U.S. Green Card down the line.
Brief E-2 Visa Background:
The E-2 investor visa is an option that provides investors the chance to work for a U.S. business in the United States. E-2 recipients must have given a significant amount of capital to the U.S. business and work solely for the E-2 visa sponsor.
The visa is valid for five years, but as stated above, it can be renewed for an indefinite amount of time if it meets specific regulations. Applicants should keep in mind that even though the E-2 is valid for five years, the I-94 is only valid for two years. Applicants must seek an I-94 extension or they will be considered out of status.
General E-2 Visa Requirements:
- The applicant must be a citizen of a U.S. treaty country
- The applicant continues to invest a substantial amount of capital in the U.S. business.
- The applicant must have the intention to enter the United States to further develop the business. This can be proven by possessing 50% ownership of the business or holding authority through a management position. Passive investments such as owning stock or real-estate are not valid substitutes.
E-2 investors are able to be accompanied by spouses and unmarried children under 21 years of age. If approved, spouses and unmarried children under 21 will have the same visa duration as the primary visa holder. Qualified E-2 dependents are also able to obtain Employment Authorization Documents which allows them to legally work in the United States.
For more information on E-2 qualifications and documentation, please visit our Investor Visa article.
Which Green Cards Can I Get?
The E-2 investor visa does not automatically lead to a green card. However, if the E-2 applicant is seeking permanent residency it is best instead to obtain an EB-2 National Interest Waiver or participate in the EB-5 Investor Program. These the possible options for getting from an E-2 visa to a green card:
1. EB-5 Green Card: You may obtain a green card while under EB-5 program if you can make an investment of $1 million (or $500,000 in a rural area or area of high unemployment) in a business that creates a certain number of jobs in the US (usually more than 10 positions). The rules for these positions area as follows:
- The jobs must be created directly by your enterprise rather than an indirect result of your enterprise. Your enterprise must be the employer of these employees. This only applies to enterprises not located in regional centers (designated organization that sponsors EB-5 projects).
- The positions must be considered full-time.
- If the business that you are investing into is considered a “troubled business” (i.e. a business that has seen a net loss over the previous two years), then you simply need to maintain the number of employees that previously worked there for the next two years.
2. Sponsorship by a family member: You may obtain a green card if you have close relatives in the United States. Your relatives may sponsor you and file a petition on your behalf in this case.
3. Sponsorship by a US employer: If you can find an employer who is willing to file a PERM Labor Certification form with the Department of Labor, then you may qualify for a green card through the employment-based immigration process. Keep in mind that the PERM requires your employer to go through an extensive recruitment process to ensure that no U.S. workers are available for your position.
If you are an “alien of exceptional ability,” have an advanced degree or an equivalent level of experience, and can show that your services will greatly benefit the United States, then you may file a National Interest Waiver (NIW) and skip applying for PERM Labor Certification.
In order to qualify for an NIW, you must demonstrate three things:
- That your enterprise will contribute significantly to the U.S. society, economy, health, education, technology, science, or culture.
- That you, the beneficiary, are capable of developing the enterprise through your experience, past successes, education, capital, or business plan.
- That the U.S. would stand to benefit by waiving the PERM requirement rather than enforcing it.
4. EB-1 Green Card: you are an “alien of extraordinary ability”, “outstanding researcher or professor”, or a “multinational manager or executive.” The third option may be more relevant for several foreign investors if they have worked for the foreign business entity in a managerial position before coming to the U.S.
To qualify, you must have been working for the multinational company for at least one continuous year in the three years leading up to filing for the EB-1. Your position must also be legitimate:
- Managers must oversee the day-to-day tasks of other workers and have the ability to hire and fire workers.
- Executives must be able to make large decisions for the company without much supervision as well as oversee the managerial aspect of the company.
E-2 Visa to Green Card Process
If you decide to make the transition from your E-2 visa to an employment-based green card, here are the general steps. The first thing that you need to do is either find a sponsoring U.S. employer who fits the qualifications for your green card. That employer must file your petition, obtain a PERM Labor Certification on your behalf (more on that below), and pay all filing fees.
There are a few exceptions, though. If you are applying for an EB-5, EB-1A, or EB-2 with a National Interest Waiver, you can self-petition and do not need a PERM. In the case of the EB-1B and EB-1C, you also do not need a PERM, though you will need to find a sponsoring employer.
PERM Labor Certification
One of the first steps to going from your E-2 to a green card is to have your employer (if you need one) file for a PERM. This system exists to protect the jobs of U.S. labor in the area that you wish to work. Therefore, your employer must go through a relatively extensive recruitment process to see if there are any qualified U.S. workers available to fill your position.
This involves determining the prevailing wage for your position (the minimum wage for your position based on your geographic location) and running a 30-day ad campaign across multiple mediums to reach potential applicants according to the PERM advertising requirements.
Now, there are two main situations that could cause serious delays to your PERM processing time. The first is a PERM audit, which either happens by chance (random audit) or because some aspect of the recruitment process triggered a red flag (targeted audit). While the random audits cannot be avoided, there are steps that your employer can take to avoid a targeted audit. If your employer receives an audit, this may add upwards of a year to your PERM.
The second factor that can slow your E-2 to green card processing time is getting a notice of supervised recruitment. This usually happens if your employer has been the subject of a targeted audit on several occasions in the past. It involves sending all documents to a Certifying Officer during the recruitment period. Unfortunately, this can sometimes happen after the recruitment period is over, meaning that it needs to be done a second time under the supervision of the CO.
Remember, if you are applying for an EB-5, EB-1, or EB-2 with an NIW, you don’t have to worry about getting a PERM. You also can file your own petition, which we’ll cover in the next section.
Filing the Petition
The petitioner (whether that is you or your employer) must identify the appropriate form to send. For most employment-based green cards, you will need an I-140 form. For the EB-5 investor green card, which you may be more qualified for based on your E-2 visa, you will need the I-529 form.
Gather the evidence required for your green card and file it along with the form itself and all fees associated with it. The I-140 tends to take about six months to process unless you choose to use premium processing, which shortens your I-140 processing time down to 15 calendar days. However, premium processing cannot be used for the EB-5, EB-1C, or EB-2 NIW green cards.
Once the USCIS receives your petition, that date becomes your priority date. Keep this date handy, because you will need it to know when you can move onto the next step in the E-2 to green card process.
Every month, the Department of State releases a visa bulletin with the latest “final action dates” according to your green card and your country of origin. When the final action date in your category matches or passes your priority date, a visa number will become available for you.
This may be the longest or shortest portion of your E-2 to green card processing time. The members of some countries sometimes have to wait for several years for their priority dates to be current. On the other hand, other countries enjoy little to no wait time. It is all based on how many people from that country petition for any particular green card.
Adjustment of Status vs Consular Processing
Once your priority date is current, it’s time to actually get your green card. You can do this in one of two ways:
You can adjust your status simply by filing an I-485 form with the USCIS, paying the fee, and waiting an average of six months for your status to be adjusted from E-2 nonimmigrant to your green card immigrant status. Premium processing is not available for the I-485.
On the other hand, you can travel to a U.S. Consulate or Embassy in your home country for consular processing. Here, you will need to participate in a one-on-one interview with a consular officer. While this may seem inconvenient, consular processing can occasionally be the cheaper and faster alternative to adjustment of status.
How Our Immigration Attorneys Can Help
Going from an E-2 visa to a green card can be a delicate and difficult process. When a significant amount of money is at stake, you don’t want to attempt the process alone. Hiring an experienced immigration attorney can save you both time and money as you strive for a green card through your enterprise.
Here at SGM Law Group, our dedicated E-2 and green card attorneys have been helping entrepreneurs and investors alike make the transition from an E-2 visa to a green card for many successful years. To take advantage of their help and expertise, you can fill out our contact form and schedule a consultation today.