There are several differences between an E-2 and an EB-5 visa. For example, an E-2 is a non-immigrant visa so when you apply for an E-2 visa you are not applying for a green card. Also, unlike the EB-5 immigrant (green card) visa, the E-2 visa has a country requirement and if you are not from one of the member countries, you cannot apply for it. In addition, an E-2 visa requires a much smaller investment amount (Our firm has processed E-2 visas with as little as $50,000 investment) and an EB-5 immigrant visa requires either $900,000 or $1,800,000 depending on where you are investing. Also, an EB-5 visa allows for a more or less passive investment through regional centers where an E-2 investor must take an active role in the entity that they start or buy.

One of the disadvantages that is often cited when considering an E-2 visa is that the E-2 visa does not “lead to a green card.” While this is often cited as a disadvantage, this statement does not hold much meaning as all non immigrant visas do not lead to green cards. (Eg. H1-B, L-1, O-1, TN, etc.) Instead, for any non immigrant visa the applicant must find a green card category that they qualify for (Eg. EB-5 or Family Based) and then apply for the green card. As such, the “restriction” that is often cited for E-2 visas is not really an exception at all.  Some green card categories that may be available include the following:

  • EB-5 (investor visa)
  • Marriage based green card
  • Family based green card
  • Employment based green card (eg. a company sponsors you)
  • EB-1 (Extraordinary ability where you can self sponsor)
  • EB-2 National Interest Waiver (where you can self sponsor)

The key is that none of the non-immigrant visas lead to a green card but if you are eligible to apply for any of the above categories, you can apply while in E-2 status.

You should note though that the E-2 visa is not a “dual intent” visa so you must carefully orchestrate the timing of your applications and you must plan your renewals, exits and entries to the country properly if you wish to apply for a green card while in E-2 status. That being said, immigration practitioners have been processing green card visas for E-2 clients for years. In fact, there is a form (Form I-508) which is specifically required for E-2 applicants filing for a green card. To be clear, a business which started where the investor obtained an E-2 visa where the business is successful enough to eventually grow into a million-dollar enterprises which created more than 10 full-time permanent jobs, could qualify to change their visa status from an E-2 visa to an EB-5 green card. Similarly, a person holding an E-2 visa could apply under one of the family based green card categories to the extent they were eligible.

While you must work closely with a qualified immigration attorney, the key of this article is that there is no real restriction which hinders a current E-2 investor from being a beneficiary of any other employment or family based immigrant petition (green card).

For additional legal advice on E-2 or EB-5 visas contact Scott Legal, P.C.. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support. Call 212-223-2964 or email for a consultation.

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