E2 and EB5 Investor Visas in the USA: Everything You Need to Know

Investment visas in the United States offer a gateway to the country for entrepreneurs and business owners looking to expand their commercial horizons or establish a new business. There are various types of visas, depending on each individual's specific needs and circumstances. Among the most prominent options are the E2 visa and the EB5 visa, which we will discuss in this article.

What is a U.S. Investment Visa?

Investment visas allow foreign nationals to live and work in the United States in exchange for making a significant investment in a U.S. business. They are designed to foster economic growth and job creation in the country. There are different types of investment visas, with the E2 visa and the EB5 visa being the most common. Both options offer unique advantages, and the choice between them will depend on the investor's needs and objectives.

What is the E2 Visa?

The E-2 visa, also known as the "Treaty Investor Visa," is a non-immigrant visa program that allows foreign nationals from countries with treaties of commerce and navigation with the United States (such as Spain) to invest in a U.S. business and reside in the country while managing that investment. With this visa, the investor can develop and operate enterprises that contribute to the U.S. economy, while they and their family have the opportunity to live and work in the country while managing that investment.

The primary objective of the E-2 visa program is to promote trade between the United States and treaty countries.

Requirements for Obtaining an E2 Visa

Applicants must meet the following eligibility criteria:

1. Nationality: The applicant must be a citizen of a country that has a treaty of commerce and navigation with the United States. It is important to note that the list of eligible countries evolves over time.
2. Investment: A substantial "at-risk" investment in a U.S. business is required. While there is no specific amount, it is suggested that the investment be at least $100,000. "At-risk" means that the funds must be committed to the enterprise and subject to potential gain or loss; therefore, passive investments, such as real estate for personal use, do not qualify for the E-2 visa.
3. Control of Investment: The applicant must demonstrate that they will have an active role in business management and control over the invested funds. In other words, they must show that the investment is in a real and operating business.
4. Source of Funds: It must be demonstrated, with supporting documents, that the investment funds come from a legal and legitimate source: savings, loans, or business profits. This is how the legality and origin of the investment capital are established.
5. Job Creation: the investment must have the potential to create jobs for U.S. workers, as this is one of the primary objectives of the E-2 visa program. The number of jobs required may vary depending on the nature and scale of the business.
6. Intent to Return: the applicant must demonstrate an intent to return to their home country once their E2 status ends. Holders of this type of visa are generally granted an initial two-year stay, which can be extended indefinitely as long as they maintain the qualifying investment and continue to meet the program's requirements.

Benefits of the E2 Visa

The E2 visa offers multiple benefits, including:

• Faster Processing: the E2 visa generally has a shorter and simpler processing time compared to the EB5, making it an attractive option for individuals seeking a relatively quick path to live and work in the United States.
• Duration: the E2 visa can be renewed indefinitely, as long as the business continues to meet the requirements.
• Family: allows the spouse and unmarried children under 21 years of age to accompany the visa holder as dependents and authorizes these family members to work or study in the United States. 

How to Apply?

To apply for this visa, you must start by gathering the necessary documentation, which includes a detailed business plan, proof of investment, and identification documents that demonstrate your nationality. Concurrently, you will complete and submit Form DS-160, the Nonimmigrant Visa Application.

Once an interview date is scheduled, you must attend the corresponding U.S. embassy or consulate, in our case, in Madrid. After that, and if the visa is approved, you will need to wait for its delivery, usually between 2 and 4 weeks.

What is the EB5 visa?

The EB-5 visa, also known as the EB-5 Immigrant Investor Program, is an immigrant visa designed to attract foreign investors, allowing them to obtain permanent residency in the United States (Green Card) through a significant investment in a business that creates jobs and fosters economic growth for the country.

Requirements for Obtaining the EB5 Visa

To qualify for the EB5 visa, the applicant must meet the following requirements:

1. Minimum Investment: a minimum investment of $1,050,000 in a new commercial enterprise, or $800,000 if the investment is made in a targeted employment area (TEA), which is an area with high unemployment or a rural designation.
2. Job Creation: the investment must demonstrate the creation or preservation of at least 10 full-time jobs for qualified U.S. workers, within 2 years of your investment. 
3. At-Risk Investment: investors are aware that every investment project involves risks, and the EB5 program is no exception. At times, substantial returns may not be generated, and at other times, you may lose part of your money. It is important to consider the financial implications of an EB5 visa.

You might be interested in our guide: Miami real estate investment.

Benefits of the EB5 Visa

The EB5 visa offers several significant benefits, making it an attractive option for those looking to settle in the United States.

One of the main benefits is the obtaining permanent residency, visa holders and their families receive a Green Card, allowing them to reside permanently in the country. It is important to note that there are no age restrictions for applicants, which broadens the possibilities of access to this visa.

Furthermore, the children of visa holders have the opportunity to attend schools and universities in the United States at resident rates, which facilitates their integration and education in the country. Additionally, family members obtain a work permit that allows them to work, engage in commercial activities, and contribute to society.

Finally, EB5 visa holders enjoy the freedom to travel in and out of the United States without restrictions.

How to apply?

The first thing you need to do is gather the necessary documentation. This includes proof of investment and your business plan. We recommend consulting with a business advisor who works with foreign nationals; they will tell you if your business idea is economically viable or provide investment options if you don't know where to invest. Along with this, you must complete and submit Form I-526, Immigrant Petition by Alien Investor.

You will then attend an interview, and once approved, your immigrant visa will be issued at the U.S. consulate or embassy. Afterward, you will receive a conditional Green Card, which can be converted into a permanent Green Card after two years. Our recommendation is to have an immigration lawyer, an expert in EB5 matters, accompany you throughout this entire process.

Key differences between the E2 and EB5 visas

Although both visas are designed for investors, there are significant differences between them:

Visa type

The E2 is a non-immigrant visa, granting temporary status, while the EB5 is an immigrant visa, a direct path to a Green Card, granting permanent status.

Investment requirement

The E2 visa requires a substantial investment, but significantly less than the EB-5, and must be renewed periodically. The EB-5 visa requires a minimum investment of $800,000 for a period of 3 to 5 years.

Job creation

The EB5 requires the creation of 10 full-time jobs, while the E2 does not have a specific employment requirement.

Intent to reside permanently

The E-2 visa holder must demonstrate an intent to depart the United States upon visa expiration, whereas the EB-5 automatically leads to permanent residency.

Processing Time

The E-2 visa application process is usually faster and less complex; once the investment is made and the business is operational or about to begin operations, the applicant can expect a decision within a few months. It is generally granted for a period of 3 to 5 years (depending on the country of origin) and can be renewed indefinitely as long as the business continues to operate successfully. In contrast, the EB-5 visa application process is more complicated and takes longer, as it offers a direct path to permanent residency in the United States. 

How much do I need to invest for a US visa?

Investment amounts vary depending on the type of visa. For the E-2 visa, a minimum investment of $100,000 is recommended, although this is not a fixed amount. For the EB-5 visa, investors typically must invest $1.05 million in a non-targeted employment area (non-TEA) or $800,000 in a targeted employment area (TEA).

Frequently Asked Questions about E-2 and EB-5 Investor Visas

How long does it take to get an E-2 or EB-5 visa?

Processing times for the U.S. Citizenship and Immigration Services (USCIS) vary depending on the volume of pending applications.

Currently, after submitting the application, processing an E-2 visa can take 3 to 8 months to secure an interview with the U.S. Embassy in Madrid. After the interview, if the visa is approved, it will take 2 to 4 weeks.

On the other hand, EB-5 visa processing times range from 30 to 61 months.

Can I change from an E-2 visa to an EB-5 visa in the future?

Yes, it is definitely possible to transition from a temporary E-2 visa to a permanent residency EB-5 visa, provided you meet the strict requirements of the EB-5 visa and make the necessary substantial investment.

Which of the two visas is better for obtaining a Green Card?

If you are looking to obtain a Green Card, the EB-5 visa is the path to take, as it is an immigrant visa that leads directly to permanent residency. The E-2 visa, however, does not offer that option.

Can I obtain financing for the investment with either of these visas?

The initial capital invested must come from the applicant's own funds or loans secured by personal assets. Subsequently, it is possible to obtain financing for the investment with either visa.

What happens if my application is rejected?

If your application is rejected, you will receive a notification explaining the reasons for the rejection. However, if you believe you can address the reason for the original denial, you may reapply.

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Conclusion

E2 and EB5 investor visas are valuable options for Spanish investors looking to establish themselves and do business in the United States. If you are considering an investment in the U.S., it is crucial to be well-informed and have proper legal advice to maximize your chances of success on this exciting journey.