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Is it possible to obtain an E-2 visa and then switch to an EB1C green card?

By November 15, 2023E-2 Visa

The E-2 visa allows foreign nationals to come to the U.S. to develop and direct a business. If the foreign national is coming as the E-2 investor, they must meet several requirements, which are outlined in detail here.  It is also possible to come to the U.S. as an E-2 employee in an executive, managerial, supervisory or specialized knowledge role. You can find more information about the requirements for an E-2 employee here.

One common question we receive from clients is whether they can transition from a temporary, nonimmigrant visa to a permanent green card. Some people think that obtaining a particular temporary visa will automatically lead to a green card. For example, many people think that if you obtain an L-1A, you will automatically qualify for an EB1C green card. Although it is a common route for foreign nationals to obtain an L-1A and then switch to an EB-1C green card, it is a misconception that you must have an L-1A before switching to the EB1C or that obtaining an L-1A will automatically qualify you for the EB1C.

What are the EB-1C requirements?

The reason that people have the impression that an L-1A will lead to an EB1C green card is that the L-1A and EB1C requirements are very similar. To qualify for an EB1C, you must meet the following requirements:

  • In the past 3 years, you must have been employed for at least one year in a managerial or executive capacity by a foreign company (or if you are already in the US working for the US entity on a specific work visa (H1B, E2, L-1, etc), you must have been employed by the foreign company in the 3 years before coming to the U.S. for at least 1 year in a managerial or executive capacity);
  • The US entity is the same employer or a subsidiary or affiliate of the foreign company (there is a qualifying relationship between the entities) ;
  • The US entity has been doing business for at least one year;
  • Both the US and the foreign entity are doing business – this means that both entities provide goods or services for regularly, systematically, and continuously;
  • You are coming to work in the U.S. in a managerial or executive capacity;
  • You have a permanent job offer from the U.S. company.

Is it possible to get an E2 visa and then switch to an EB1C?

Yes, this may be possible, but it will depend on whether the applicant meets all of the EB1C requirements. Let us look at a couple of examples:

  • Bob is an Austrian national who worked as the CEO for a company in Austria for 5 years. The Austrian company is 100% owned by Austrian nationals and has invested a substantial amount to set up a U.S. subsidiary. Bob is transferred to the U.S. as an E-2 executive employee and works as the CEO of the U.S. company for 2 years. The U.S. and Austrian companies are both doing well financially and have dozens of employees. In this scenario, Bob would have been eligible for an L-1A visa or an E2 visa. He is also eligible to apply for the EB-1C green card as he meets all the EB-1C requirements as listed above.
  • Rachel is a Canadian national who worked as a solo consultant in Canada for a few years and never set up a company. She decided to set up a U.S. corporation and open a consulting company in the U.S. She invested a substantial amount to start her consulting firm and obtained an E-2 investor visa. Her company has now grown to include 5 employees. In this scenario, Rachel would not be eligible for an EB1C green card as she does not meet several of the EB1C requirements.

As these examples show, it is possible to apply for the EB1C while you are on an E2 visa but the ability to do so will ultimately depend on whether you meet the EB1C requirements. If you are in the U.S. on a temporary visa and are interested in transitioning to a permanent legal resident status it is a good idea to discuss this with your U.S. employer and set up a consultation with an immigration attorney to understand your options.

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