E-2 vs. EB-5 Investor Visas: Everything You Need to Know

Foreign nationals looking to live in the U.S. have several visa paths available, investment visas being one of them. Under U.S. investment visa categories, two popular options are the E-2 treaty investor visa and the EB-5 immigrant investor program.

This article will explore these two visa options, delving into their similarities, differences, and requirements.

Eligibility Criteria for an E-2 Visa

The main factor that determines E-2 visa eligibility is the applicant’s nationality. Treaty investors must be citizens of an E-2 treaty country. This includes any form of legally obtained citizenship, including naturalization.

Currently, the United States holds E-2 treaties with more than 70 countries.

Key Requirements

Candidates for the E2 visa are required to invest in a U.S. business and plan to leave the U.S. upon visa expiration. However, the E2 visa can be renewed, allowing treaty investors to remain in the U.S. well beyond the initial two-year term, despite the requirement to eventually leave.

Unlike other investment visas that specify a minimum investment amount, the E2 visa does not have a fixed minimum investment requirement. Instead, E-2 treaty investors must make a significant investment that is enough to buy or establish a business, demonstrating a serious financial commitment to managing and growing the business.

The business in question must be a legitimate, for-profit enterprise engaged in entrepreneurial activities.

A core purpose of the E-2 visa is to create jobs for American workers, which means that the business must be able to generate substantial income to support the investor and their family, as well as contribute positively to the American economy.

While no exact minimum investment amount is required, industry experts often suggest an investment of no less than $100,000 to ensure a viable application, as smaller investments may not be deemed significant enough to qualify.

A larger investment amount typically strengthens the investor’s case by showing their financial commitment to the business.

The investment must meet the “at risk” criteria for the E2 visa, meaning it must be fully committed to the business without guarantees of return.

This commitment is evidenced by funds already spent or in the process of being spent at the time of the E2 visa application.

Typically, an E-2 treaty investor should hold a minimum of 50% ownership in the business, hold an executive position, or have a role that provides control and operational oversight.

Pros and Cons

• The E2 visa grants an initial stay of two years, with the possibility of indefinite renewal in two-year intervals. There’s no cap on the number of renewals an E-2 visa holder can obtain, as long as the business continues to operate and meet the criteria of the E2 program.
• E-2 visa holders enjoy the liberty to travel in and out of the U.S. without any limitations, and there’s no restriction on the duration of travel. However, it is important to be aware of the visa’s validity, as complications may arise if the visa expires while the investor is outside the U.S.
• The E2 visa is known for relatively faster processing times, although the exact timeline can vary depending on the details of each case.
• Employment for E-2 visa holders is confined to the business in which they have invested.
• Prospective investors must note that the E-2 visa is a non-immigrant visa, which means it does not offer a direct pathway to a U.S. Green Card or citizenship.

E-2 Visa Eligibility for Family Members

The E2 visa also extends eligibility to the dependent family members of the investor, which includes their spouse and unmarried children under 21 years of age.

If these dependents receive E-2 approval, they are granted the same duration of stay as the primary treaty investor. The nationality of dependents does not have to match that of the main applicant.

Spouses are eligible to apply for a work permit, while children under 21 can pursue education in the U.S.

However, dependency under the E2 visa has its limitations; children will lose their dependent status upon reaching the age of 21, making them ineligible to remain on their parent’s visa as dependents.

Ideal Business Ventures for E-2 Investors

An E-2 treaty investor has the flexibility to invest in various business types, depending on the investor’s personal interests, as long as the business complies with E2 criteria and all relevant regulations. Popular choices among investors include multinational companies, franchise operations, restaurants, and consultancy firms.

How to File an E-2 Visa Application

For a successful E-2 treaty investor visa application, investors need to fulfill all eligibility criteria and carefully navigate the application process.

Applicants must file several documents for the E2 visa, including Form DS-160, the Online Nonimmigrant Visa Application, and Form DS-156E, the Nonimmigrant Treaty Trader/Investor Visa Application.

The necessary documents for an E2 visa application also include a current passport, evidence of business premises through a lease or purchase agreement, state business registration or a sales license, and a federal employer identification number. Financial statements, acquisition contracts, valuation of assets, and proof of payments are critical for demonstrating the establishment of the business.

Moreover, the source of investment capital must be documented, with items like loan documents and receipts from the sale of assets.

Where relevant, additional details on business operations should be provided, including but not limited to customer contracts, share certificates, escrow fund evidence, partnership agreements, billing documents, and financial records.

A critical component of the E2 visa application is a detailed business plan, further discussed below.

E-2 Visa Business Plan

A comprehensive business plan must be included in an E2 visa application. This plan should outline future projections and the deployment of investment towards the success of the business. Essential components of this plan include financial, operational, staffing, and marketing strategies, alongside the applicant’s qualifications and background.

The business plan must present a profit and loss forecast for the upcoming five years, demonstrating that the investment will fulfill growth expectations and generate employment throughout the visa’s validity.

The plan needs to be realistic and achievable. Investors seeking to extend their E2 visa must show evidence of realized business objectives, as detailed in the initial plan.

While there is no minimum amount of investment required, the invested capital must be significant relative to the total business cost. It falls upon the investor to justify that the investment is substantial when the business and its demands are considered.

To support their claim, a treaty investor might present various documents such as business bank statements, income proofs, loan agreements, and receipts of business expenditures, demonstrating the assets at risk.

The E2 visa supports various business models, requiring investors to outline a clear plan for how their business will operate. Since E2 visa holders will be managing and growing a business, having a well-defined management structure is crucial.

The business plan must also prove the investor’s capacity to employ U.S. workers, detailing the number and nature of the positions to be created.

Furthermore, a marketing strategy should be set up within the business plan to explain the economic benefits of the investor’s funding to the U.S. economy. The inclusion of U.S. contacts or signed letters of intent can help with this.

E-2 applicants are required to show that their expertise and experience directly align with the business venture. Those with exceptional skills may also explore the O-1 visa as an option, although it offers a significantly different immigration pathway.

Why Professional Advice is Crucial for E-2 Visa Applicants

Securing an E2 visa may require a lower investment amount compared to other investment options, but applicants face the potential loss of both time and resources if their E2 visa application is incomplete, incorrect, or fails to meet the necessary criteria.

This is why collaborating with an immigration lawyer can greatly improve the chances of meeting all E2 visa requirements. Experienced immigration attorneys are also well-positioned to connect the treaty investor with other experts within the industry as needed.

The Differences Between E-2 and EB-5 Visas

The EB-5 visa, like the E2 visa, is an investor visa, granting foreign nationals the opportunity to live and work in the U.S. by making a significant investment in a new commercial enterprise (NCE). Yet, there are significant differences between these two types of visas.

Unlike the E2 visa, the EB-5 visa specifies minimum investment thresholds. For investments in a targeted employment area (TEA), the minimum is set at $800,000, while investments outside these areas require at least $1,050,000.

The EB-5 visa offers a pathway to conditional permanent residency in the U.S. for a period of two years, granting the right to live and work anywhere within the country. This can lead to obtaining a permanent Green Card. While the E2 visa permits holders to temporarily live in the U.S., it restricts employment to the business involved in the investment.

A crucial distinction to note is that the E2 visa falls under the non-immigrant category and does not offer a direct route to permanent residency. Although it can be renewed indefinitely as long as the holder meets the visa requirements, it doesn’t promise a permanent stay or eventual citizenship.

EB-5 visa holders, on the other hand, can transition from conditional to permanent residency after two years, obtaining the freedom to live and work anywhere in the U.S., no matter where the NCE is located.

Moreover, after five years of residing in the U.S. through the EB-5 program, individuals become eligible to apply for U.S. citizenship. Their two years of conditional residency in the U.S. can count towards this residence requirement, which makes the U.S. naturalization process even shorter for EB-5 investors.

How to Select the Best Option

Due to the differences between EB-5 and E-2 visas, investors are advised to conduct thorough research to determine which option aligns best with their goals and preferences.

Seeking assistance from experienced industry professionals during the due diligence and application stages can be advantageous for prospective investors.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

If you’re interested in learning more about the E-2 and EB-5 visa options, book a call with us today to discuss the specifics of your immigration plans.