E visas are based upon treaties between the United States and individual countries. Many countries do not have such treaties, and thus their nationals 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.
E-1 and E-2 visas are temporary classifications for qualifying treaty traders and investors. E status does not itself provide permanent residence. The holder must intend to depart when E status ends, but an immigrant petition does not by itself prohibit E classification: 8 CFR 214.2(e)(5) addresses this distinction. A green card requires a separate qualifying basis and an individually available procedure.
To discuss an E-2 application or a possible later immigration route, contact the office about your E-2 and green-card plans. Describe your nationality, business, current location and immigration status, and intended timing.
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. The minimum capital is $1,050,000, or $800,000 for a qualifying targeted employment area or infrastructure project; the lower threshold is not determined simply by using a regional center. See USCIS EB-5 investment requirements. Verify the rules effective when filing. There are two different means of investment. 1) Through a USCIS-designated 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. Investment returns and repayment are not guaranteed. The investor receives an initial two-year green card. Removal of conditions requires a separate petition and eligibility determination; it is not automatic 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. The same capital framework applies to the investor’s own business: $1,050,000, or $800,000 for a qualifying targeted employment area or infrastructure project. If the project is approved by USCIS, then the investor again receives a two-year green card. The investor must petition to remove conditions and establish the applicable investment and job-creation requirements. See 8 USC 1186b. Whether existing E-2 investments can satisfy EB-5 requirements needs a separate assessment.
Conclusion
E-1 and E-2 status do not automatically lead to a green card. A later application must meet the requirements of a separate immigration category and the procedure available to the applicant.