The EB-5 petition has been routinely misstated as the “best option” for foreign entrepreneurs and investors to obtain a green card. In short, foreign investors who file an EB-5 petition may receive a two-year conditional green card if they invest $500,000 in a regional center or $1,000,000 in a new U.S. enterprise and create 10 jobs. About a year and nine months later, they may file for a ten-year green card by demonstrating their investment created at least ten jobs for U.S. workers. Sounds simple, right?
However, slowly but surely, foreign investors have begun to realize the EB-5 filing process is tedious and expensive. They may even lose their conditional green card and hard-earned money if they are unable to meet the job creation requirement (as mentioned above).
Fortunately, there are better alternatives to the stringent EB-5 process namely L-1A and E-2 visa. The latter is ideal for foreign nationals from other countries wishing to enter the United States to establish their businesses and are not in a rush to apply for legal permanent residency.
Obtaining an L-1A visa is an attractive alternative for foreign nationals who 1) already established a business in their native countries and 2) have worked there for at least a year out of past three as a manager or executive.
Unlike an EB-5 visa, an L1-A visa 1) does not require an investment of $500,000 or $1,000,000, 2) does not require ten jobs to be created for U.S. workers, and 3) may be approved as fast as fifteen days if premium processing is requested during filing. Currently, there is no backlog issues. Foreign nationals may change status to L-1A while in the United States legally or obtain the nonimmigrant visa abroad through the U.S. Embassy.
From our experience, L-1A visa applicants commonly ask “How much money do I need to invest in the U.S. company and how many U.S. employees do I need to have?” The answer is simple – “As much money and as many employees you need to run your business.” U.S. officers, while reviewing L-1A visa applications, commonly look for “reasonableness.” In other words, they would review submitted documents to determine whether the invested amount and the proposed numbers of U.S. employees are sufficient for the foreign nationals to commence their businesses in the United States.
An L-1A status may be renewed up to seven years. The L-1A visa holder’s spouse and minor children (unmarried and under 21 years old) may apply for an L-2 visa to enter the United States. The spouse, in particular, may apply for a work permit.
Untimely, an L-1A visa holder may apply for a 10-year green card (not a 2-year conditional) without having to go through the labor certification process. In this respect, an L-1A visa holder may receive a permanent green card before an EB-5 petitioner does.
Before filing for EB-5, foreign nationals of a treaty country should consider applying for an E-2 visa to enter the United States lawfully. A treaty country is a country that has maintained a treaty of friendship, commerce, and navigation with the United States.
Approval of an E-2 visa does not require a minimum investment of $500,000 or $1,000,000, and does not require a creation of at least ten jobs for U.S. employees. The application process is rather fast and there is no backlog issue. E-2 status may be renewed indefinitely as long as the investment exists. While in E-2 visa status, the foreign nationals may elect to apply for an EB-5 green card without waiting outside the United States.
Besides being a national of a treaty country, the foreign investors must have invested or be actively investing a substantial and non-marginal amount of capital in a real and operating U.S. enterprise, have at least 50% ownership of the enterprise, and be able to direct and develop the investment enterprise.
For E-2 purposes, there is no set dollar figure to define what a “substantial” investment is. The investment is considered substantial if the amount is 1) substantial in relationship to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration, 2) sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise, and 3) of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
To meet the “non-marginal” requirement, the U.S. enterprise must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
On this note, the spouse and children (unmarried and under 21 years old) of an E-2 holder may also apply for an E-2 visa and enter the United States.
Obtaining an L-1A or E-2 visa may be a more practical and affordable option for foreign entrepreneurs and investors who are seeking to establish businesses in the United States. If you have any questions, please contact our office for a free, in-person consultation to speak with an experienced immigration attorney. We will be able to assist you.
ABOUT THIS AUTHOR
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.
Ms. Jeanny Tsoi is an Associate Attorney at Wilner & O’Reilly who handles employment-based transactional cases. She also has extensive experience with family-based immigration matters, 601/601A waivers, non-immigrant visas, and asylum applications. She is admitted to the State Bar of California, the United States District Court for the Central District of California, and the United States Court of Appeals for the Ninth Circuit. Ms. Tsoi graduated Cum Laude from University of Southern California with a Bachelor’s degree in Art History. In 2012, she earned her Juris Doctorate degree from Southwestern Law School where she was the Vice President of Phi Alpha Delta Law Fraternity and a member of the Asian Pacific American Law Students Association. Ms. Tsoi is fluent in English, Mandarin, and Cantonese.