Obtaining a green card on the basis of E2/E1

E visas are based upon treaties between the United States and individual countries. Many countries do not have such treaties, and thus their residents are ineligible for these visas. Some countries have treaties with the United States for one or the other of the E visas. Some have treaties for both. Before investigating the possibility of an E visa, the applicant must ensure there is an existing treaty in place between his/her country and the US for that visa.

Unlike most work visas to the United States, the full application for the E visas generally are applied for at US embassies, instead of the United States Citizenship and Immigration Service (USCIS) in the United States. The E-1 visa is granted to aliens who are involved in substantial trade with the United States. E-2 visas are for aliens who invest substantial money into a US based business. In all cases the applicant must inform the embassy that he/she intends to return to their homeland after the expiration of the E visa. Thus, it is generally understood that E visa holders normally cannot change their status to that of a green card. However, there are exceptions.

EB-1 Multinational Manager or Executive

EB-1 or Employment Based – 1 is an immigrant category to the United States that leads to a green card for the applicant. There are a few different types of individuals who can qualify for EB-1. The relevant one for our discussion is a multinational manager or executive. This is a person who has served as a manager or an executive for at least one year in a foreign company that is directly related to a US company. Directly related can mean a US or foreign company that is a subsidiary of the other or where the ownership of the foreign company is the same as the US company.  For example, Company X is a foreign company. Company Y is formed in the United States as a wholly owned subsidiary of Company X. Thus, the companies are directly related to one another. Often, the foreign company will send one of its executives or managers to help start the related US company. This is normally done through the L visa, intra-company employee visa. These are individuals who often apply for EB-1 later, after they have sufficiently established the US business.

However, if a foreign company invests substantial sums into its related US company or has substantial trade with the US company, the foreign company could apply for an E-2 or E-1 visa, as the case may be, for one of its managers or executives. After the manager or executive builds up the US company and hires several US employees, the US company could apply for a green card for the manager or executive under the EB-1 option. Alternatively, the owner of a foreign company could open a US company where he/she is the owner of a US company and invest substantial money or do substantial trade with the US company. In that case, again the owner could be eligible for an E-2 or E-1 visa as long as he/she owns a minimum of 50% of the US company, and the owners of the foreign company are the same as that in the US company. If the owner of both companies was a manager or executive in both, then after the owner builds up the US company and hires several US employees, he/she could be eligible for a green card through the EB-1 process.

The EB-1 petition is a company sponsored process for a nonimmigrant employee who has been serving as a manager or executive of the company. The company files Form I-140, Immigrant Petition for Alien Workers, with USCIS. Among many pieces of evidence, a statement must be included from an authorized official demonstrating that:

  • The beneficiary has been employed as an executive or manager abroad by a qualifying related entity for at least one year in the three-year period prior to the I-140 filing or the most recent nonimmigrant admission in an executive or managerial capacity;
  • The company has been doing business in the U.S. for at least one year;
  • A qualifying related entity abroad currently continues to do business;
  • The alien will work in the United States in a managerial or executive capacity.  The company must provide a description of the duties they will perform.

In addition, the company must show it has substantial revenue in the United States and has several US based employees. If the EB-1 category for immigrant visas is not subject to a visa backlog, then the Beneficiary can also file Form I-485, Adjustment of Status, along with the Immigrant Petition. The Adjustment of Status is essentially an application for a green card.

Spouse of the Principal E-1 or E-2 Visa Holder

The principal E-1 or E-2 visa holder may only work for the US company that qualified for the E-1/E-2 status. If he/she wants to work elsewhere, then their new employer must file a new visa petition for them. However, that is not the case for the spouse of the principal visa holder. The spouse can work anywhere. Let’s assume Company Z hires the spouse through the E-1/E-2 visa. After a period of time, Company Z offers a permanent position to the spouse. If Company Z is willing to file an Immigrant Petition for an Alien Worker – Form I-140 and ultimately it’s approved, then the spouse with her whole family can apply for Adjustment of Status – Form I-485 for green cards for the family.

In most cases, the process for filing an immigrant petition for an alien worker, who is not EB-1 above, is very involved and quite expensive. It means the employer must advertise for the position through local newspapers and job centers, interview any candidates who may be reasonably qualified, document all the interviews and indicate why the applicants are not qualified. Following that the employer must file what’s known as a Labor Certification Application with the Department of Labor, certifying that the only applicant qualified for the position was the foreign worker. Only after the Department approves the application may the employer file the immigrant petition with USCIS.

Marriage to a US citizen or Green Card Holder

If the E-1 or E-2 visa holder is single and marries a US citizen or green card holder, then the US spouse can apply for a green card for the visa holder. See the article on marriage to a US citizen.

Diversity Visa Program

Every year, usually in October, the United States opens a visa lottery program, whereby individuals from most countries of the world can apply for a green card. An E visa holder also can participate in this program. If they are chosen, they and their family can apply for a green card through the Adjustment of Status process, Form I-485.

EB-5 Investment

Finally, an E-1 or E-2 visa holder can apply for a green card through the EB-5 investment program. This program requires a minimum investment of $900,000 into a US business that is certified under the EB-5 program. There are two different means of investment. 1) Through a state sponsored regional center; 2) Through a business owned by the E-1/E-2 visa holder. The regional center option usually involves an investment into a large development project such as a hotel or commercial center. The EB-5 investor becomes one of many other investors, and his/her role in the development project is passive, meaning the person will take no active involvement in the project. The money usually is committed for several years, and the investor receives a very minimal annual rate of return. Assuming the project is successful, the investor will receive their money back after the several year commitment. The investor receives an initial two-year green card. Assuming the regional center complies with the requirements for hiring US workers, the investor will receive a permanent green card after two years.

The E-1/E-2 visa holder also can apply for the EB-5 program through their own business. This is an extremely complex process. The investor’s project must be approved by USCIS. The investor must prove that the business will hire at least ten US workers over the first two years of operation. Normally, the investment required for one’s own business through this program is a minimum of $1.8 million. If the project is approved by USCIS, then the investor again receives a two-year green card. After two years, if the investor can prove that the business hired at least ten US workers, then the investor will receive a permanent green card. An E-2 visa holder’s investments also can be used to also qualify for the EB-5 investment later.

Conclusion

Unlike other types of non-immigrant visas, the E-1 and E-2 visas are not easily converted into a green card. But as discussed above, there are creative ways to achieve the dream of a green card through either visa.

Contact us today and we will be happy to check out all the best immigration options for you!

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