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E-2 Visa Background

The E-2 visa category is reserved for foreign investors. It enables a national of a treaty country to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. To qualify, the treaty investor must meet a few basic requirements:

  • The investor must be a national of a treaty country (i.e., NAFTA);
  • The investment must be substantial, which means it must be sufficient to ensure the successful operation of the enterprise;
  • The investment must be in a real operating commercial enterprise;
  • The investment may not be marginal, which means it must have the capacity to generate significantly more income than necessary to provide a living to the investor and family;
  • The investor must have control of the funds, and the investment must be at risk; and
  • The investor must be coming to the U.S. solely to develop and direct the enterprise. This is established by showing at least 50 percent ownership or possession of operational control through an executive, supervisory or highly specialized position.

5 Ways to Convert an E-2 into a Green Card

Individuals who have been admitted to the U.S. in E-2 status are required to maintain an intent to depart the country when their status expires. What if this is not ideal? What if that individual wishes to stay and work in the U.S. on a permanent basis? The obvious solution is to adjust your status to that of a legal permanent resident. Green Card holders are permitted to live and work in the U.S. permanently, and converting an E-2 visa into a Green Card is a viable option. Here are five ways to adjust status:

  1. Have an employer sponsor you;
  2. Have a family member sponsor you;
  3. Invest more money and adjust to an EB-5 Green Card;
  4. Invest in a regional center project and adjust to an EB-5 Green Card; or
  5. Create a new business outside the U.S.

The first two require sponsorship. An E-2 visa holder can adjust his or her status to that of an employment-based Green Card holder, or a family-based Green Card holder. If your employer is able and willing to undertake the required recruitment campaign, or you have a close relative living in the U.S. as a Green Card holder or a U.S. citizen, becoming a legal permanent resident can be accomplished. Employment-based Green Cards require the employer to show that there are no U.S. workers capable of filling the position, and family-based Green Cards require qualifying relatives. The process is not always easy, but it is definitely achievable.

The third and fourth options require investing a substantial amount of capital in a new commercial enterprise. To obtain an EB-5 Green Card, an individual needs to invest at least $1 million and create a minimum of 10 full-time jobs. However, if the investment is directed towards a regional center project, only $500,000 is required. A regional center project refers to a targeted employment area that is either rural or plagued with high unemployment. The investment must be traceable. The source and path of funds needs to be documented and clean, and it also cannot be generated inside the U.S. by the E-2 business unless the funds are paid directly to the investor and the investor pays U.S. taxes on the amount.

The last option involves creating a sufficiently large company outside the U.S. The E-2 visa holder would then have to work as a manager for at least one year prior to returning to the U.S. as a permanent inter-corporate transferee. If the E-2 holder can’t physically leave the U.S., another possibility to consider is having their spouse manage the foreign company, obtain a Green Card, and include the E-2 holder on the application.

A Green Card permits a foreign national to live and work in the U.S. on a permanent basis. There are numerous benefits, but it is also important to remember that legal permanent resident status triggers certain requirements that do not exist with an E-2 visa. Green Card holders are required to pay U.S. taxes and must spend at least 183 days in the country per year.

If you believe you may qualify for one of the above criteria or would like to explore your other green card options, please contact our office to schedule a consultation with one of our attorneys today!