Investor Visas

The United States government has created an immigration program designed to encourage people to invest in America in return for residency according to the following law: (INA 203(b)(5), 8 USC 1153(b)(5), CFR 204.6).  This provision rewards immigrant investors with a variety of temporary and permanent resident visas, and the opportunity to profit from their business investments in the United States.

Investment visas 

More than 10,000 investor visas are made available each year from the U.S. Government Immigration and Naturalization Service.  More than half of these visas go unclaimed.

There are several types of investment visas that will be described in this chapter, briefly they are:

• The Investment Green Card Program (EB-5 Visa and Green Card) Requires investment of  $500,000 or $1 Million in a U.S. based business that creates 10 full time jobs, or that you import goods or services in excess of $1M per year from the U.S.
• Active Exporter/Importer Program (E-1 Visa) For nationals of countries that have a Treaty of Trade and Commerce with the U.S. to engage in substantial import or export between the U.S. and your country.
• Treaty Investor Program(E-2 Visa) Requires substantial investment in the U.S. and that your native country have a Treaty Investor Agreement with the U.S.
• Business Management Green-Card Program (L-1 Visa and Green Card) Requires that you form a U.S. affiliate of your foreign company and that this affiliate requests you to come to the U.S. as its manager.

The EB-5 investment visa

The EB-5 investment visa is meant to attract capital and create jobs for the U.S. residents and citizens.  Up to 10,000 independent visas per fiscal year may be allocated under this program to foreign investors. The investment visa is reserved exclusively for business entrepreneurs (along with their spouses and minor children). Just like for American citizens, there are unlimited investment choices if you fulfill the program’s two primary requirements:

• You must invest $500k to $1 million in a new commercial enterprise in the U.S. The amount depends on the location of the business.  The $500,000 threshold is earmarked for certain areas deemed to be economically disadvantaged.
• The enterprise must benefit the U.S. economy and create new full time jobs for at least 10 United States residents or citizens.

Provided the investor has truly placed the required capital “at risk” in a new U.S. business, the EB-5 immigrant investment program allows a great deal more flexibility and freedom than any other investment program:

• The investment program does not require you to manage your investment on a daily basis. Rather, it requires you to “engage in a business enterprise,” meaning you can be a Limited Partner or passive investor, be in accordance with regulations of the law, and continue to pursue other professional or personal ventures.
• The minimum required dollar amount of the investment is $500,000 for a business that is located in a rural area or in an urban area with an unemployment rate certified by the state government to be at least 150% greater than the national average. Otherwise the investment threshold is $1 million.  (For example, the entire state of Hawaii with all its strategic Pacific Rim business benefits, falls within the lower investment requirement.)
• The entire investment does not have to be made in cash. Cash equivalents such as certificates of deposits, loans and notes can count in the total.
• A number of investors may join together in creating or expanding a U.S. business and each may qualify for a green card through the single company. However, the individual investment of each person must still be for the minimum qualifying amount and each investor must be separately financially responsible for the creation of ten new jobs. Example: (Mr. Able and his four brothers invest $5 million in Able Co., which employs 50).
• An investor can purchase an existing business if he or she increases its net worth or the number of employees by at least 40%. Example: (Mr. Z invests $1 million dollars in Company B, which employs 10 people. He hires 4 new employees in the newly restructured company).
• There are incentives for investing in a “financially troubled” business. If the existing business purchased is in financial trouble, an investment designed to save that business will qualify the investor for a green card. Purchasing a “financially troubled” businesses releases the investor from having to increase the net worth or the number of employees. To qualify as a “troubled business”, the business must have been in operation for at least two years and have had an annual loss during those two years equal to at least 20% of the company’s net worth. Many start-up companies in America with huge profit potential qualify for this exception.

What is INS form I-526?

I-526 is a petition for status used by an entrepreneur or investor as an immigrant to the U.S. The National Visa Service Legal Department can prepare and submit the I-526 petition whether you are presently in the U.S. in status or outside of the U.S.

What are the requirements for an I-526 petition?

You may file this petition if you have established a new commercial enterprise:

• In which you have invested or are actively in the process of investing the amount required for the area in which the business is located
• Which will benefit the U.S. economy and
• Which will create full-time employment in the U.S. for at least 10 U.S. citizens, permanent residents or other immigrants authorized to be employed, other than for you, your spouse, yours sons or daughters or any nonimmigrant aliens
• In which you will engage in a material or policy making capacity.  The establishment of a new commercial enterprise may include:
  

Creating a new business

Purchasing an existing business with restructuring or reorganizing resulting in a new commercial  enterprise; or

Expanding an existing business through investment of the amount required so that there is a change of at least 40% in either the net worth, number of employees or both; or

A minimum investment (amount of capital at risk) of $500,000.00 to $1,000,000.00 is required  depending on the geographic location of the business in the United States.

A 2-year conditional visa is issued at first.  Once the business has been established for 2 years, the condition is removed and a permanent visa is issued which is valid indefinitely.

Are dependents eligible for permanent residence?

Yes.  Your spouse and all children under 21 years old are entitled to permanent residence when you receive approval of the I-526.  When approval is received, you and your dependents may apply for permanent residence.  If they are in the U.S., they may adjust their status to permanent residence by filing INS for I-485.

The E-1 active exporter/importer or “treaty trader” visa

If your country has a Treaty of Trade and Commerce with the US, you can live in the US while you engage in substantial import or export between the US and your country. You must be actively engaged in trade, and over 50% of your business activity must be between the US and your country. You, your employer, or your company can purchase a business, start a new US affiliate, or you can simply work as a trade representative under an E-1 visa.

You may be able to obtain financing for 50% or more of your activity, with your existing or newly acquired US business, if any, and/or use your foreign assets as collateral.

Your family members will also receive E-1 visas, and can live work, and attend school.

You do not have to maintain a foreign residence in order to be eligible for an E-1 visa. The E-1 visa is indefinitely renewable and remains valid for as long as you remain in business.

Here's a tip:  An E-1 Visa can be converted to a Green Card if you have a year of offshore managerial experience in your firm (though it is simpler to do this, and a positive outcome is slightly more likely, on an L-1 basis).

You can live in the US as an active trader or as your company’s trade representative or US affiliate trade manager.

Who qualifies for an E-1 visa classification?

The E-1 visa is for individuals or companies, and members of their immediate families, who are engaged in or want to develop substantial trade between the U.S. and a country with which the U.S. maintains an appropriate treaty.  Application may be made on a Form DS-156 to the U.S. Consular office where you reside.  The consular officer may require additional documents to verify the purpose in obtaining the visa.

What are the requirements for an E-1 visa?

To be eligible, you must maintain or be in the process of developing substantial trade between your country and the U.S. and be a national from a country with which the U.S. maintains an appropriate treaty.

How long is the E-1 visa valid?

The E-1 visa is valid for up to one year. Extensions of stay in increments of two years may be granted.

The E-2 treaty investor visa

If you invest in a US business and you are from a country that has a Treaty Investor Agreement with the US, you can live and work in America on an indefinitely renewable E-2 Treaty Investor Visa. To qualify, you must have already made a “substantial portion” of the total investment, the investment has to provide a living for you and your family and create jobs for Americans, and it must be sufficiently capitalized to stay viable.

You may be able to finance your investment for 50% or more, with your newly acquired investment property and your foreign assets as collateral. The investment loan must come from non-US sources, but the overhead expenses may be loaned by either a US or non-US entity.

Your family members will receive E-2 visas, and can live, work and attend school.

The E-2 is not a path to Green Card rights— at least, not directly. You and your family may not work in the US except at your own business. If your business fails or you retire, you will lose your E-2 visa status.

The E-2 visa can be a way of gaining international management experience, necessary for an L-1 Visa, which can lead to Green Card rights. If you do not have a foreign business, but can make an investment that will generate enough income to support yourself and your family, the E-2 Visa will give you access to the US, so that you can establish connections and work out a Green Card strategy.

Who qualifies for an E-2 visa classification?

An E-2 visa is granted if you want to enter the U.S. solely to develop and direct a business in which you have invested a substantial amount of capital.  An E-2 visa is also valid for your employees and members of your immediate family. Application is made by submission of a form DS-156 to the U.S. Consular office where you live.  The consular officer may require additional documents to verify the purpose for obtaining the visa.

What are the requirements for an E-2 visa?

To be eligible, you or the business entity making the application on your behalf must:  

• Be a national of a country that has a treaty with the U.S.; and
• Plan to enter the U.S. solely to develop and direct the operation of a business in which you or a non-U.S. employer has invested a substantial amount of capital.

What about employees?

If you are an employee, you must have the same nationality as the company.

Who is included?

The visa is granted to your spouse and minor children regardless of nationality.

How long is the E-2 visa valid?

The visa for an initial period of one year and may be granted extensions in increments of up to 2 years. Application for an extension may be made while you remain in the U.S.