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Treaty Investor, Treaty Trader Visas and Immigrant Investor Visas (EB-5) or Green cards

Treaty Investor and Treaty Trader Visas

Business people from countries that have signed treaties designed to promote trade and investment with the United States, can obtain visas to work in the USA. These visas are called E visas. A Treaty of Commerce can specify that only E-2 visa (Treaty Investor) is available, or both E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are available for nationals of this country.

The complete list of the Treaty countries listing both types of E visas is available at the US Department of State website.

The E-2 visa is useful for entrepreneurs, managers and employees who need to live in the USA to oversee a major investment made by the foreign national or company. The E-2 Visa applicant must be a national of a country with which the United States signed a Treaty of Commerce. To be entitled to E-2 classification, the principal applicant must be a national of the treaty country. This requirement applies whether the applicant relies on his or her own investment or is employed by a qualified person or organization. If an E-2 applicant isn't relying on his or her own substantial investment, but rather an employer's, the employer as well must have the nationality of the treaty country. If the employer is an organization, regardless of the place of its incorporation, it must be at least 50% owned by persons who have the treaty nationality. A corporation's nationality usually is the country of its incorporation.

The purpose of the E visa must be either to carry out substantial trade, including trade in services or technology, mainly between the United States and the treaty country (E-1); or, to develop and direct the operations of an enterprise in which the individual has invested; or is in the process of investing a substantial amount of capital (E-2).

In addition to the investment in a business enterprise, the treaty investor must be coming to the United States to develop and direct the operations of the enterprise in which he or she has made the investment. The applicant must have more than 50% percent ownership of the investment, unless the applicant is coming as an employee of the enterprise.

Certain employees of qualified treaty investors or traders can also come to USA on E-1 and E-2 visas if they have the treaty nationality. Eligibility for E-2/E-1 visa on the basis of employment with a qualified person or organization requires an appropriate position. The duties of the employee must be executive or supervisory. Alternatively, if the applicant is employed in a minor capacity, he must have special qualifications that make the services to be rendered essential to the efficient operation of the enterprise.

A spouse and minor children of the E-1 or E-2 visa holder can also obtain dependent investor or trader treaty visas. Nationality of the spouse does not have to be that of a treaty country.

If applying for a visa at the USA Consulate abroad, there is no need to file any special application or petition with the USCIS. Treaty investors and traders usually apply for a visa at the appropriate US embassy or consulate abroad in their home countries. However, it’s extremely important to properly prepare a complete application for a visa and gather and organize documentation in support of the treaty investor or trader visa which will be submitted directly to the consulate. This task is usually preformed by a qualified USA immigration attorney.

Immigrant Investor Visa (Green Card) under EB-5 Visa Category

In 1991, the Congress created the EB-5 Immigrant Investor Visa Program. Under section INA 203(b)(5), every year there are 10,000 (ten thousand) immigrant visas made available to qualified foreign investors seeking permanent resident status (“Green Card”) on the basis of their investment into a new commercial enterprise in the USA.

This Immigrant Investor Visas are in the EB-5 visa category. Out of total 10,000 investor visas available annually, 3,000 are set aside for those investors who invest under a special pilot program into one of the USCIS-designated Regional Centers in one of the approved “targeted employment” areas. “Targeted employment” typically refers to rural areas or areas that suffer from high unemployment rates.

The application for the Immigrant Investor visa Form I-526 is filed with the USCIS. To qualify for an EB-5 visa, generally, the applicant-investor must establish the following:

• Investor is coming to the U.S. to invest in a new commercial enterprise,
• The individual investor’s total investment must be at least USD $1,000,000 (one million dollars). Exception is made only for investments through the Regional Centers, min amount of investment is USD $500,000 (five hundred thousand dollars);
• This new investment will benefit the U.S. Economy;
• The new commercial enterprise creates at least 10 full-time jobs for U.S. Workers;
• The individual investor must actively participate in the management of the new business, it’s not enough to be a “passive” investor;
• The funds or capital invested come from lawful source.

Once granted an EB-5 visa, the individual, his or her spouse and dependent children (under 21) are granted conditional residency, which can become permanent only after 2 years when and if the conditions are removed.

When the Petition I-526 is approved, the investor who is lawfully in the USA can file the application for adjustment of status. Otherwise, the investor can apply for a visa at the nearest US consulate abroad.

An immigrant investor in conditional resident status must submit Form I-829 to the USCIS within the 90-day period immediately preceding the second anniversary of his or her admission to the United States as a conditional permanent resident. Failure to do so will result in automatic termination of the conditional resident’s status and initiation of removal proceedings.

The form I-829 is not going to be automatically approved. The investor must prove to the satisfaction of the USCIS that they have indeed met all the EB-5 visa requirements. Based on the business and legal documentation submitted with the application, the USCIS adjudicator can either 1) approve an I-829 petition based on the documents initially submitted, 2) issue a request for further evidence, or 3) refer it for an adjudication (with or without the interview) by a District CIS Office.

Sometimes during the 2-year conditional period, the USCIS can terminate the EB-5 status. The law provides three separate grounds for terminating an EB-5 investor’s status during the conditional period. Immigrant status will be terminated if:

• The investment in the new commercial enterprise was made “solely” to evade the USA immigration laws.
• The investor failed to invest (or was not in the process of investing) the requisite capital, or failed to sustain the investments during the 2-year conditional period; or
• The investor did not meet other requirements of the creation of the new employment.

Immigration to the United States through the EB-5 category is a reality, but it is not easy and not for everyone. EB-5 visas had never approached the maximum of allowed 10 thousand visas a year. The EB-5 program was further restricted in 1998 by the AAO precedent decisions that made it even harder to obtain EB-5 status. That is why it’s very important to have a legal advice and step-by-step guidance of a qualified immigration attorney. For more questions and to schedule a confidential telephone or email consultation, you are welcome to contact us at Attorney@law-visa-usa.com