Investment into the United States is a great way to for individuals and families to obtain a temporary visa or a Green Card and Permanent Residency in the United States. Successful investor visa applications are highly complex and involve several moving parts that combine federal immigration regulations, investment and financial due diligence, and the unique objective of the client and business. Because the structure of the business and the manner in which the investment is made can be the difference between an approval and denial, you need an experienced immigration attorney who can help navigate and mange this process effectively. Diver Law Firm focuses on helping high net worth individuals and families invest into the United States and further, obtain U.S. permanent residency. This process generally involves the most common types of visa types including the E-1 and E-2 Treaty Investor Visas and the EB-5 Investment Green Card. These require the expertise and an experienced immigration lawyer with knowledge in business and investment consultancy. Contact Diver Law Firm today at (405) 896-8080 and determine whether or not a U.S. Investor Visa is right for you.

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Diver Law Firm works with foreign nationals and business clients in all phases of the Investor Visa process and offers full-service Investor Visa packages. Contact today to schedule your free consultation.

Types of U.S. Investor Visas and General Requirements

EB-5 Investment Green Card: the EB-5 Investor Green Card is a permanent visa status for a foreign national in order to establish a business in the United States or invest into an existing business in the U.S. The required investment amount is a minimum of $1,000,000 USD in a non-designated “Regional Center” or a minimum of $500,000 USD in a designated “Regional Center.” Not only will you need to invest into the business but the investment must create ten (10) full-time jobs for people legally residing in the U.S. In some cases, business and investment structures, the job creation calculation can be modified to benefit the investor. Investing pursuant to the EB-5 visa regulations allows the foreign national/investor, their spouse, and any children under the age of 21 to obtain a conditional green card. On November 21, 2019, a new rule published by the U.S. Department of Homeland Security will modernize and drastically alter the EB-5 Immigrant Investor Program. The new rule provides priority date retention to certain investors, increases the required minimum investment to account for inflation, reforms certain targeted employment area designations, and other technical and conforming revisions.

E-1 Treaty Trader Visa: the E-1 Treaty Trader Visa is for foreign nationals from a qualifying country who conduct a significant amount of international trade with the United States and may qualify for a temporary or nonimmigrant E-1 treaty trader visa. The volume of the international trade must be sufficient to justify the trader and their employees being in the United States to manage the trade. Further, the international trade conducted in the U.S. must constitute the majority of the trader’s international trade (at least 50% or more of the trader’s imports/exports). While there is no stated numerical minimum, the higher the volume the more likely you will qualify as a treaty trader for immigration purposes.

E-2 Treaty Investor Visa: the E-2 Treaty Investor Visa is for foreign nationals from a qualifying country who have invested a substantial amount of capital into a business in the United States. The E-2 Investor Visa allows the individual to enter and work in the U.S. and manage the investment. While the E-2 Treaty Investor Visa must be renewed every two (2) years, there is no limit on the amount of times it can be renewed meaning it can be extended indefinitely. The required investment amount is approximately $100,000 but it can vary depending on many factors. The investment amount must also be able to properly capitalize the business and continue its operation in the U.S. Spouses and unmarried children under 21 years of age may receive derivative status as an E-2 dependent. Upon conclusion of the business, investors and essential employees of the business must return to their home-country or change their immigration status.

E-2 Treaty Investor Visa

General qualifications:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation

  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States

  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

More Information

The E-2 Treaty Investor visa is available to foreign nationals of over 80 participating countries who invest a substantial amount into a U.S. enterprise. Different nations are subject to various E-2 regulations and require different procedural steps to apply. The E-2 visa is good valid for up to two years at a time however, there no limit on the number of extensions allowed. Once an E-2 investor is approved, the business can also petition for E-2 specialized workers from the same country. The E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Dependents of E-2 visa holders can also enjoy work authorization when accompanying the principal visa holder. The E-2 visa is a popular precursor status for investors who wish to eventually gain permanent residence through the EB-5 Investor Visa Program.

E-2 Treaty Investor Qualifications

To qualify for E-2 classification, an investor must be a national of a designated treaty country.  The U.S. State Department maintains a list of immigration treaty countries, some subject to country specific regulations.  Your attorney can check to see if and how your nationality qualifies for E-2 status.  A qualifying investment must be made into a legitimate enterprise in the United States, whereby the enterprise is at least 50% owned or controlled by one or more investors of the same treat country nationality.

There is no legal provision regarding the minimum investment, but the higher the investment dollar figure the better.  A minimum of $100,000.00 is recommended, which is much lower than the EB-5 minimum.  For purposes of E-2 eligibility, the investment must be “substantial,” which considers the investment in relation to the total value of the company.  Adjudicators must determines if the amount is sufficient to ensure the investor’s financial commitment to the management, operation, and development of the enterprise.  The lower the cost of the enterprise, the higher in proportion the investment must be to be considered substantial.

E-2 investment capital can take many forms as long as it is irrevocably committed, or put “at risk” of commercial loss with the goal of becoming a profitable business.  If structured correctly, capital can be considered irrevocably committed by placing it in escrow with a third party. The investment can be cash, assets, inventory, equipment, loans and even promissory notes.  Be sure to maintain proof of fund transfer(s), repayments and satisfaction of related debt(s), and evidence of the legal source of invested capital.  Legal source of funds merely means that the investment capital is not from criminal activity.  The law permits capital to be sourced from gifts or loans, sometimes even from the original owner of an enterprise.

A qualifying E-2 investment requires a bona fide and marginal enterprise.  Bona fide means real, active, and operating to produce goods or perform services for a profit. Listing a residential address for the business is a major red flag that may result in denial because the government tends to dismiss these types of business as not legitimate.   An enterprise cannot be marginal, meaning that it must have the capacity to produce profits in the future that are more than merely a minimal living for the treaty investor.  Not all E-2 businesses must be profitable at time of application, but they should demonstrate that they will become more than marginal within five years of the investor gaining E-2 status.

E-2 Employee Qualification

The E-2 investor’s qualifying company can apply to hire certain employees who are of the same treaty country nationality as the E-2 investor. These must be payroll employees of the E-2 company and cannot be independent contractors. Importantly, E-2 employees must be either executive, supervisory, or possess essential skills needed by the E-2 company. Duties are considered executive or supervisory if the employee is given ultimate control and responsibility for the organization’s overall operation, or at least a major component of it. Alternatively, an E-2 can be issued for employees with special skills or qualifications that make the employee essential to the efficient operation of the company. Similar to other skilled employment categories, a foreign language skill does not satisfy this requirement on its own merits. The essentiality of a candidate is a fact driven analysis with factors such as:

  • The degree of proven expertise in the employee’s area of operations;

  • Whether others possess the employee’s specific skills;

  • The salary that the special qualifications can command;

  • Whether the skills and qualifications are readily available in the United States.

While E-2 investors can only work for the company they invested in, E-2 employees are allowed to work for parent or subsidiary entities of the E-2 company as long as they continue to be in executive, supervisory, or essential positions.

Dependents of E-2 Visa Holder

Spouses and dependents (under 21) of E-2 treaty investors and employees also qualify for E-2 status. They can accompany or follow the principal E-2 if processing at a consulate, or they can apply through the USCIS with an I-539 if already in the United States. The nationalities of E-2 dependents do not need to be the same as the treaty investor or employee, nor do they even need to be on the State Department’s list of E-2 countries. These family members are generally granted the same period of stay as the employee or investor. Unlike most dependent categories, spouses of E-2 workers qualify for work authorization, and must file Form I-765 to take advantage of this benefit. Unlike the E-2 investor or employees, E-2 spouses can work for any employer when they receive their Employment Authorization Document (EAD), and they can even change jobs without giving notice to the USCIS while the EAD is valid.

EB-5 Immigrant Investor Visa Program

Here are five important considerations to make when investing or developing and seeking to take advantage of this federal program:

  1. Act sooner rather than later

  2. Tap into the regional center bonanza

  3. Do your due diligence

  4. Find new frontiers

  5. Adapt your business model to fit regulations

EB-5 Links & More information

The EB-5 is an investment-based Green Card classification that is available to investors of all nationalities. The EB-5 requires a minimum investment of $1,000,000 USD (or $500,000 USD in certain areas) either directly into an enterprise or through designated regional centers. The investment must directly result in the creation of ten (10) jobs for U.S. workers, which includes U.S. citizens, lawful permanent residents, asylums, refugees, and some other categories. It is important to note that it does not include the investor, their spouse or children, and it specifically excludes workers who are on most nonimmigrant visa statuses including H-1B. Once the investment is made, each investor will file Form I-526, Immigrant Petition by Alien Entrepreneur. Once approved, the investor will receive a two-year conditional green card, during which times the investment must create 10 full-time jobs in order to remove conditions on permanent residence. The EB-5 is a popular second step for investors who have already made a qualifying E-2 investment but now wish to invest more and attain permanent residence. Such investors can make subsequent capital infusions into the business until the EB-5 investment minimum is met, which will vary according to whether the E-2 business is in a TEA or not.

Qualifying Investment

Currently, each EB-5 investment must be at least $1,000,000 USD unless it is in a Targeted Employment Area (TEA), in which case the investment can be as low as $500,000 USD. TEAs include rural areas and areas with high unemployment rates. TEAs change often according to updated census data. Nearby populated areas they can often be situated in a way that a designated TEA where a half-million dollar investment will suffice is across the street from a non-TEA where the full million dollar investment must be made. As such, investors who are seeking the lower investment threshold should consult an immigration attorney to ensure the investment is in a TEA.

Currently, the Department of Homeland Security is proposing to amend certain regulations that would drastically increase the minimum investment thresholds. The general investment would increase from $1,000,000 USD to $1,800,000 USD, which the minimum investment for TEA projects would increase from $500,000 USD to $1,350,000 USD. It would reshape the TEA/rural area regulations to encourage development outside of major cities.

EB-5 investment capital can take many forms as long as it is irrevocably committed, or put “at risk” of commercial loss with the goal of becoming a profitable business. If structured correctly, capital can be considered irrevocably committed by placing it in escrow with a third party. The investment can be cash, assets, inventory, equipment, loans and even promissory notes. Be sure to maintain proof of fund transfer(s), repayments and satisfaction of related debt(s), and evidence of the legal source of invested capital. The law permits capital to be sourced from gifts or loans, sometimes even from the original owner of an enterprise.

Regional Center or Direct Investment

EB-5 investors can either invest through a USCIS designated regional center or directly invest their capital into an enterprise of their choosing. Regional centers work by accumulating capital from several investors and coordinate the investment(s) into a project or a portfolio of projects that have been pre-approved by the USCIS. It is important to note that the approval of a regional center and its project is not an endorsement by the USCIS of the profitability or compliance thereof.

There are numerous differences between direct investment and regional center investment. Generally, regional center projects will be larger scale than that of a single direct investor because of the accumulation of funds from several investors. The executive and/or managerial role of investors are drastically minimized when investing through a regional center, which generally manage most aspects of their projects. The key difference between the two investment types is that the USCIS allows regional center investments to use count both direct and indirect job creation towards the ten full-time job requirement, while direct investors can only count direct employees toward job creation.

Direct investors can only count full-time payroll employees to demonstrate the satisfaction of the job-creation requirement.  But those who invest through a regional center are also permitted to use indirect job creation as calculated by “reasonable economic or statistical methodologies.” Commonly accepted methodologies indicate indirect job creation as calculated from the project’s direct job creation, expenditures, and/or revenues. The USCIS recently quit accepting models that calculated job creation from tenant occupancy. In other words, no longer can an investor claim that, for example, a commercial development project will house five businesses with two new full-time jobs each, resulting in ten jobs created. This model was recently rejected by the USCIS because the link between the EB-5 project and the projected job creation is too weak.

There is an exception to the ten job requirement for troubled businesses because saving jobs also benefits the U.S. economy. Investments into qualifying “troubled businesses” can rely on preserved pre-existing positions as well as newly created positions to satisfy the ten job requirement. For example, an investor would satisfy the ten job requirement by buying a troubled business with seven existing full-time employees and creating three additional full-time positions. A troubled business is one that has existed for at least two years and has incurred a net loss of at least 20% of its net worth during the 12- or 24-month period leading up to filing date of the I-526.