Investor Visas

• E-2 Treaty Investor Visa
• EB-5 Investor Visa

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E-2 Treaty Investor Visa

The E-2 Treaty Investor Visa is for investors who are nationals of a treaty country with the United States.

The investor must be coming to the United States to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing.

To qualify as an E-2 Treaty Investor you must make an investment that is substantial, and not considered marginal. The investment must be made in a real operating enterprise. Also, an "investment" means the placing of funds or other capital assets "at risk" in the hope of generating a return on the funds. Therefore, uncommitted funds in an idle bank account do not constitute an investment. Speculative or passive investments made merely for potential appreciation, such as land and stocks do not qualify under the statute.

The E-2 Treaty Investor investment must not be marginal. It must generate significantly more income than needed to provide a living to the investor and his/her family, or it must have a significant economic impact in the United States and employ US workers. The investor must have control of the funds, and the investment must be at risk in the commercial sense. For the purpose of measuring the investment, loans secured with the assets of the investment enterprise are not counted.

The investor must be coming to the US to develop and direct the enterprise. If applicants are not the principal investors, they must be employed as a supervisor, executive, or as the possessor of highly specialized skills. The percentage of investment in cash for a low-cost enterprise must be higher than the percentage of investment in a high-cost enterprise

EB-5 Investor Visa

Congress created the EB-5 immigrant investor visa category in the Immigration Act of 1990 in the hopes of attracting foreign capital to the US and creating jobs for American workers in the process. The overall advantage of the EB-5 visa category is that it allows the beneficiary to engage in commercial enterprise anywhere in the US.

What are the basic requirements for the EB-5 visa?
There are three basic requirements as follows:

• First, the foreign national must establish a business or invest in an existing business that was created or restructured after November 19,1990
• Second, the foreign national must have invested $1 million ($500,000 in some cases) in the business
• Third, the business must create full-time employment for at least 10 US workers

What types of investments meet the requirements for the EB-5 investor?
The investment can be in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the foreign national provided that he or she is personally and primarily liable and the assets of the new commercial enterprise are not used to secure any of the indebtedness. The definition specifically excludes capital acquired by unlawful means.

How much investment is required to be an EB-5 investor?
The basic investment amount is $1 million. The required investment is $500,000 for a business established in a "targeted employment area." Targeted employment areas include:

1. Rural areas, defined as any area other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; and
2. Areas having an unemployment rate that is at least 150% of the national average.

For a Pilot Program investment, the threshold is a $500,000 capital contribution to a designated Regional Center.

How many full-time jobs must be created by the EB-5 qualifying investment?
The investment must create at least 10 full-time jobs for US citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the United States. This includes conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation, but does not include nonimmigrants. In calculating the required number of employment positions, the investor may not include spouses or children, but may include other family members who are employed by the business.

Can a commercial enterprise involving multiple investors be used as a basis for classification as an EB-5 investor?
Yes. Multiple investors may establish a new commercial enterprise which can be the basis for the EB-5 classification. However, each investor applying for the classification must meet the requirements for the EB-5 classification separately. For example, each investor must create 10 jobs for US workers.