The largest and most rapidly evolving facet of immigration law

Business immigration law is the largest and most rapidly evolving facet of immigration law. Investors and entrepreneurs looking to live and conduct business in the United States are faced with complex legal decisions, one of them being the work visa application process in the United States. The attorneys at The Saade Law Firm, P.A. have vast practical experience navigating the business immigration landscape and are uniquely qualified to help individuals through the journey. Investors and entrepreneurs have different legal avenues of coming to the United States to live and conduct business, visas, such as the E2 and EB-5 visa are both great options to consider. In this article, The Saade Law, P.A. will explore these two types of visas, the main difference between them, and selecting the appropriate one for the client’s individual goals. 

At first glance, the E2 and EB-5 visas can appear similar as they both allow individuals to work in the United States contingent on making an investment in an American business. There are, however, some important differences that cannot be overlooked. Selecting the appropriate visa depends on the individual's immigration goals and their personal circumstances. But first, let’s define what E2 and EB-5 visas are. Here are some important points to consider when applying for a US visa

What is an E2 Visa?

The E2 visa is a popular option for investors and entrepreneurs as it allows them to live in the United States, start a business, invest in a business, and work for said business. It is a non-immigrant visa in which the individual must invest a substantial amount of capital into a United States business and direct and develop said business. Individuals have the option to either start their own business or invest in an existing one. Additionally, E2 visas are only available to people from countries that have an E2 treaty with the United States.

What is an EB-5 Visa?

The EB-5 is a type of investor visa that grants permanent resident status to investors who meet certain criteria. Additionally, the applicant’s spouse and children (unmarried and under the age of 21) are also eligible to receive a green card. The applicant must spend a minimum of $800,000 or $1,050,000 depending on the location in a United States-based project that meets the requirements of the program to qualify for this visa, including an expenditure of money, participation in a new business venture, and the creation of jobs. 

How Do E2 and EB-5 Visas Differ?

Now that we have established what E2 and EB-5 visas are, let’s explore the seven fundamental aspects that make them different from one another. Understanding these differences will help individuals make the appropriate visa decision for their needs and goals. 

1. Non-immigrant vs. Immigrant Visa‍

One of the most important and major differences between the two visas is that the E2 visa is a non-immigrant visa while the EB-5 is an immigrant visa. Non-immigrant visas are temporary and do not have a direct path to permanent residency (green card), they also require an ‘intent to depart’ the country once the visa ends. An immigrant visa, however, does lead to lawful permanent residence in the United States.

2. Timeline‍

The length of time it takes to get each visa is different. An E2 visa is much quicker to obtain than an EB-5 one. Why? The answer is multifaceted, but it boils down to the EB-5 visa having an extremely long and multilayered process. The first step is filing the Form I-526 which can take an average of 18 months. Then, the applicant must go through a consular process to ‘adjust status’ which takes about six months. After that the applicant receives conditional lawful permanent residency (green card) for two years and three months before it expires the applicant must file a Form I-829 to become an unconditional permanent residency holder - a process that takes about two and a half years. In total, this process can take several years and has many steps. On the contrary, the E2 process is quicker and simpler and can be applied for in two ways: change of status or visa processing. 

3. Nationality Requirements ‍

Each of the two visas have different nationality requirements. E2 visas can only be obtained by people with the nationality of a country that has an E2 treaty with the United States. Countries include Colombia, Honduras, and Mexico. EB-5 visas have no nationality restrictions, meaning a national from any country can apply. 

4. Creating Employment and Jobs‍

With an EB-5 visa the individual is required to create ten (10) full time jobs in the country before obtaining a green card. For an E2 visa there is no job creation requirement, but only showing that the business invested in is not ‘marginal’.

5. Minimum Investment 

E2 visas do not have a set minimum investment amount. It states individuals need to invest a ‘substantial’ amount in a US business which is based on a proportionality test. Contrarily, EB-5 visas have a minimum investment amount of $800,000 for infrastructure or targeted employment area projects, and $1,050,000 for non-TEA projects (as of March 2022).

6. Lawful Source of Investment Funding ‍

For both visas it is required to prove the investment capital was earned lawfully, however, to obtain an EB-5 visa this requirement is more heavily scrutinized and a lot of documentation must be presented. 

7. Work Authorization

Even though both visas authorize individuals to work in the country, they differ in the extent to which they can work. For instance, an E2 investor is only allowed to work for the E2 business and are required to direct and develop said business. With an EB-5, the individual and spouse can work for any company while still being required to engage in the management of the EB-5 business.

E2 and EB-5 visas are both great options for investors looking to work in the United States. Understanding the similarities, differences, requirements, and limitations of each one is paramount in making the right decision for the individual based on their goals. Contact The Saade Law Firm today and let our experts be your zealous advocate through this process. The attorneys at Saade Law can also support clients with other practice areas including real estate law, hospitality law, intellectual property law, general legal counsel, and more.