The U.S. Investor Visa

A visa for investment and residency in the United States

The investor visa classification is designed to facilitate the entry and sojourn of entrepreneurs within the United States, thereby contributing to the U.S. economy. The United States Government offers various visa options to foreign investors seeking to establish a presence in the United States. These visas may lead to temporary or permanent residency, contingent upon the specific visa category and the nature of the investment. The principal categories include the E-1, E-2, and EB-5 visas. These classifications provide diverse opportunities for foreign investors intending to establish or expand a business enterprise within U.S. territory. This document outlines the primary types of investor visas, their requisite criteria, and the application procedures thereof.

E-1 Visa: Treaty Trader

The trader visa E-1 is available to nationals of countries maintaining a treaty of commerce and navigation with the United States. This visa category facilitates the engagement of such individuals in “substantial” international trade, primarily between the United States and their country of nationality. The term “substantial” denotes a continuous and significant volume of trade, encompassing goods, services, or technology. The E-1 visa is a non-immigrant classification, meaning it does not directly confer eligibility for lawful permanent residency (a “Green Card”). However, it may be renewed indefinitely, provided that all eligibility requirements are met.

• Key Criteria:
  • Nationality: The applicant must be a national of a country signatory to a qualifying treaty with the United States.
  • Substantial International Trade: The applicant must be engaged in international trade that is deemed substantial.
  • Predominant Trade Flow: The majority of the trade conducted must be between the United States and the applicant’s country of nationality.
  • Non-Immigrant Intent: The applicant must harbor an unequivocal intent to depart the United States upon the termination of their E-1 status, notwithstanding the possibility of subsequent renewals.

 E-2 Visa : Enterprise Founder

The E-2 investor visa is available to nationals of countries maintaining a treaty of commerce and navigation with the United States who seek to invest a substantial amount of capital in a U.S. enterprise. As France is a signatory to such a treaty, French entrepreneurs are eligible to apply for this visa, which is specifically designed for business creators. The investment must be active, meaning it cannot be passive and must result in the establishment of an operational commercial enterprise that generates employment. Furthermore, the enterprise must not be marginal; it must demonstrate the capacity to generate substantial income or create employment opportunities for U.S. workers. Similar to the E-1 Treaty Trader visa, the E-2 is a non-immigrant visa but is eligible for renewal.

• E-2 Visa: Key Criteria:
  • Nationality: The applicant must possess the nationality of a country maintaining a treaty of commerce and navigation with the United States.
  • Substantial Investment: A substantial amount of capital must be invested in a bona fide enterprise within the United States.
  • At-Risk Investment: The investment must be subject to entrepreneurial risk; passive investments do not qualify.
  • Non-Marginal Enterprise: The enterprise must not be a marginal enterprise solely designed to provide a livelihood for the investor and their family. It must have the present or future capacity to generate significant income or contribute to the U.S. economy
  • Direction and Development: The investor must be in a position to develop and direct the operations of the enterprise..
  • Intent to Depart: The investor must demonstrate an unequivocal intent to depart the United States upon the termination of their E-2 status.

EB-5 Visa : Immigrant Investor Program

The EB-5 is a category of immigrant visa that enables eligible foreign investors, their spouses, and their unmarried children under the age of 21 to obtain lawful permanent resident status (Green Card) in the United States. This program necessitates a substantial capital investment in a new or existing U.S. commercial enterprise and the creation or preservation of full-time jobs for qualified U.S. workers.

• Principal Criteria
  • Investment Amount: The standard minimum investment is $1,050,000. However, this threshold is reduced to $800,000 if the investment is made in a Targeted Employment Area (TEA), defined as a rural area or an area experiencing high unemployment.
  • Job Creation: The investment must lead to the creation or preservation of at least ten (10) full-time jobs for qualifying U.S. workers, which include U.S. citizens, lawful permanent residents, or other immigrants authorized to work in the United States. This excludes the investor and their immediate family members.
  • Commercial Enterprise: The requisite investment must be directed into a new commercial enterprise or an existing commercial enterprise that is restructured, or significantly expanded.
  • Lawful Source of Funds: The investor must furnish verifiable evidence demonstrating that the invested capital was obtained through lawful means.

Investment Pathways: the EB-5 program offers two distinct investment methodologies. Direct Investment: Under this pathway, the investor directly manages the day-to-day operations of the commercial enterprise. Regional Center Investment: This pathway involves investment through a Regional Center, an entity designated by the U.S. Citizenship and Immigration Services (USCIS). These centers manage projects that comply with EB-5 program requirements, potentially streamlining the immigration process for the investor.

Overview of the Investor Visa Application Process.

To successfully navigate the investor visa application process, applicants must comprehend the general stages involved, anticipate the requisite timelines, and prepare meticulously for each phase, particularly the interview where applicable (e.g., E-2 Investor Visa).

1. Visa Type Identification. Ascertain the most appropriate visa category aligned with the applicant’s objectives and circumstances.
2. Investment Preparation. Amass and commit the requisite capital to a qualifying enterprise within the United States. This stage necessitates the development of a comprehensive business plan.
3. Document Compilation. Amass and commit the requisite capital to a qualifying enterprise within the United States. This stage necessitates the development of a comprehensive business plan.
4. Petition Filing.
   • E-2 Visa : Submission of Form DS-160 (Online Nonimmigrant Visa Application) and scheduling an appointment at the U.S. Embassy or Consulate in the applicant’s country of origin.
   • EB-5 Visa: Filing of Form I-526 (Immigrant Petition by Alien Entrepreneur) with U.S. Citizenship and Immigration Services (USCIS).
5. Interview (If Applicable). E-2 Visa: An interview will be conducted at the U.S. Embassy or Consulate. EB-5 Visa: Following the approval of Form I-526, an interview may be required for adjustment of status (if the applicant is in the U.S.) or for the immigrant visa (if the applicant is outside the U.S.).
6. Adjudication. Await the decision rendered by the immigration authorities.
7. Conditional Status (EB-5) : For the EB-5 visa, initial permanent resident status is conditional. After a two-year period, the investor is required to file Form I-829 (Petition by Entrepreneur to Remove Conditions on Permanent Resident Status) to obtain unconditional permanent residency..

How to choose? E-1, E-2, or EB-5

Choosing between an E-1, E-2, and EB-5 visa necessitates a comprehensive assessment of several critical factors.

• E-1 Visa (Treaty Trader): For individuals from certain treaty countries who engage in substantial trade with the U.S.
• E-2 Visa (Treaty Investor): For individuals from certain treaty countries who make a substantial investment in a U.S. enterprise.
• EB-5 Visa (Immigrant Investor Program): An immigrant visa (leads to a Green Card) for foreign investors who make a significant investment in a new commercial enterprise in the U.S. and create jobs for U.S. workers.

• Long-Term Objective: For individuals whose primary aim is to secure permanent residency (Green Card) for themselves and their dependents, the EB-5 visa represents the sole direct pathway. E-1 and E-2 visas are classified as non-immigrant visas; while they are renewable, they do not confer a direct route to permanent residency.

• Nationality: Eligibility for E-1 and E-2 visas is restricted to nationals of countries that maintain treaties of commerce and navigation with the United States. In contrast, the EB-5 visa program is accessible to individuals of all nationalities.

• Investment Capital: The EB-5 visa mandates a substantially higher capital investment, specifically $800,000 or $1,050,000. E-1 and E-2 visas do not stipulate a minimum investment amount; however, the investment must be demonstrably “substantial” in proportion to the enterprise.

• Managerial Involvement: E-1 and E-2 visa holders are typically required to maintain an active role in the management and direction of their enterprise. For EB-5 visa applicants, particularly those investing through Regional Centers, direct day-to-day managerial involvement may be less stringent.
• Complexity and Processing Timelines: The EB-5 visa process is generally characterized by greater complexity and extended processing times, primarily due to rigorous due diligence requirements and significant demand. E-1 and E-2 visa applications may be processed more expeditiously.
• Job Creation Mandate: Uniquely, the EB-5 visa includes a formal requirement for the creation of at least ten full-time jobs for qualifying U.S. workers. While E-2 enterprises may contribute to job creation, there is no quantified employment generation requirement for visa approval.