How to Go From E2 Visa to Green Card: Step-by-Step Guide

How to Go From E2 Visa to Green Card - Step-by-Step Guide

 

The E2 visa is a very popular option for investors and entrepreneurs to live and work in the United States. Yet, one of the main issues for people with E2 visas is that the E2 visa does not directly lead to a green card.

 

The E2 visa is a non-immigrant visa, and so it is temporary and does not lead to permanent residence.

 

This can be especially troublesome for E2 visa holders who have children as dependents to their E2 visa. Once their children turn 21 years old, they no longer qualify as dependents of the principal E2 visa holder. So, they either have to leave the United States or get another visa for themselves. For this reason, many E2 visa holders look for ways to go from an E2 visa to green card.

 

The process of going from an E2 visa to a green card can be done with the help of an immigration lawyer.

 

In this guide, I’m going to discuss 5 ways for you to go from E2 visa to green card.

 

If you have any questions about anything that we discuss, please email me directly at Michael@AshooriLaw.com. I’m very responsive to emails and would be happy to answer any questions you have.

 

Overview:

 

1. Introduction to the E2 Visa

 

  • Overview of the E2 Visa Requirements

 

  • Details of what it means that the E2 Visa is a Non-Immigrant Visa

 

  • How to go from an E2 Visa to Green Card

 

  • The E2 Visa “Intent to Depart” Requirement

 

2. 5 Different Visa Options to Convert Your E2 Visa to Green Card.

 

  • EB-5 Visa

 

  • Company Sponsored Green Card

 

  • EB-1 Visa if you have an Extraordinary Ability

 

  • National Interest Waiver

 

  • Marriage-Based Green Card

 

3. Conclusion

 

1. Introduction to the E2 Visa

 

The E2 visa is a non-immigrant visa which allows foreign nationals to start a business in the United States and work for that business. The E2 visa is only available to people from countries that have an E2 treaty with the United States. In order to get an E2 visa, you must invest a substantial amount of capital in a United States business and you must direct and develop that business. Additionally, the funds you use to invest in the E2 business must have been obtained lawfully.

 

The E2 visa is temporary, however, it can be renewed over and over without limit, as long as the E2 company continues to operate and satisfy all of the E2 visa requirements.

 

As a quick overview, lets go over the basic requirements to get an E2 visa:

 

  • You must be a from a country that has an E2 treaty with the United States

 

  • You must have the intent to depart the United States upon termination of your E2 status

 

  • You must make a substantial investment in a United States business

 

  • The E2 business cannot be a marginal enterprise

 

  • The E2 business must be an active bona fide business

 

  • You must be coming to the United States to direct and develop the E2 business

 

  • Your investment funds must have been obtained lawfully

 

  • Your investment funds must be at risk

 

Now that you know the requirements of an E2 visa, lets discuss a few basic aspects of going from an E2 visa to a green card.

 

The E2 Visa is a Non-Immigrant Visa

 

As mentioned earlier, the E2 visa is a non-immigrant visa category. This means that an E2 visa is temporary and does not directly lead to a green card.

 

How to go from an E2 Visa to Green Card

 

In order to get a green card from an E2 visa, you must apply for an immigrant visa. There are 2 different ways to convert from an E2 visa to a green card:

 

  • You can apply for an immigrant visa at a US Consulate abroad; or

 

  • You can adjust your status to an immigrant status, within the United States.

 

Applying for an Immigrant Visa at a US Consulate (Consular Processing)

 

  • If are not in the United States in lawful status, you will likely have to apply for an E2 visa at a United States Consulate within your home country.

 

  • This process is called “Consular Processing” or “Visa Processing.”

 

Adjustment of Status

 

  • If you are in the US in lawful status, you are eligible to apply for an adjustment of status.

 

  • An adjustment of status is the process of converting your non-immigrant visa status to immigrant visa status.

 

  • The entire process is handled within the United States. As long as you are in lawful status, you do not have to leave the United States.

 

  • If you are in the United States in E2 status, you will most likely do an adjustment of status.

 

Now that you know the two methods of actually converting your E2 to a green card, lets discuss one more aspect of the E2 visa.

 

The E2 Visa “Intent to Depart” Requirement

 

One of the requirements to get an E2 visa is that you must have the intent to depart the United States once your E2 status ends.

 

You might be thinking to yourself that this requirement will stop you from converting your E2 visa to a green card. This is not true.

 

According to USCIS, you are still eligible for E2 status, even if you have filed an adjustment of status application.

 

This means that you can adjust status from an E2 visa to a green card, and still comply with the requirement that you have the “intent to depart” the US once your E2 status ends.

 

This process is complex.The timing for filing paperwork is very important to the success of your green card approval.

 

Working with an immigration lawyer with experience in this process is critical to your success. So get an immigration lawyer involved as soon as possible.

 

Now that we’ve gone over the introductory information on the E2 visa, lets discuss some different immigrant visa categories.

 

2. 5 Different Visa Options to Convert Your E2 Visa to Green Card.

 

To get a green card, you will have to convert your E2 visa to an immigrant visa category.

 

There are many immigrant visas classifications to consider. Below, we will discuss 5 ways to convert your E2 visa to a green card:

 

 

  • Company Sponsored Green Card

 

  • EB1A Visa if You Have an Extraordinary Ability

 

  • National Interest Waiver

 

  • Marriage-Based Green Card

 

a. EB-5 Visa

 

The EB-5 Visa is an immigrant visa for investors. With an EB-5 visa, you are eligible to become get a green card for yourself, your spouse, and your unmarried children under 21 years old.

 

To get an EB-5 visa, you are required to invest a minimum of $1 million in a US business. If the business is located in an economically depressed area classified as a “target employment area” you may be eligible to invest a reduced amount of $500,000. In addition, the US business must create 10 full-time jobs as a result of your investment.

 

The EB-5 visa is very similar to the E2 visa. Yet, there are many key differences.

 

Both the E2 visa and the EB-5 visa are investment-based visas. Because of their similarities, converting your E2 visa to an EB-5 visa is one of the most straightforward and natural ways to go from an E2 visa to green card.

 

There are 6 basic requirements to get an EB-5 visa:

 

  • Invest in a New Commercial Enterprise

 

  • Invest a Minimum of $1 Million (or $500,000 for Targeted Employment Areas)

 

  • Create 10 Full-Time Jobs for US Workers

 

  • Lawful Source of Funds

 

  • Funds Must be “At-Risk”

 

  • Engage in the Management of the New Commercial Enterprise

 

i. Invest in a New Commercial Enterprise

 

To get an EB-5 visa, you are required to invest in a “new commercial enterprise.”

 

A new commercial enterprise is a for-profit business, conducting lawful activities, that was formed after November 29, 1990.

 

As an E2 visa holder, you have a few options for how to set-up your EB-5 investment. You can:

 

  • Invest additional capital in your E2 company, to get an EB-5 visa

 

  • Invest in a new business

 

  • Invest in an existing business other than your E2 company

 

  • Invest in a Regional Center

 

One of the most convenient ways to go from an E2 visa to green card is to invest additional capital in your E2 business. This is because, you probably already have a lot of familiarity with how to run your E2 business and there are unique advantages when using your E2 business as your future EB-5 business (we will discuss these advantages below).

 

Yet, there may be reasons why you don’t want to invest additional capital in your E2 business. Instead of investing in your E2 business, you may want to invest in a regional center. A regional center is a business, authorized by USCIS, to collect money from several investors to develop a large scale project. Regional centers develop major projects such as resorts and commercial office buildings.

 

If you invest in a regional center, you will have very little involvement in the management of the business. With regional centers, there is typically a managing partner, or a managing member that handles the day to day operations. Your role as an investor is typically limited to voting on major decisions.

 

ii. Invest a Minimum of $1 Million (or $500,000 for Targeted Employment Areas)

 

To get an EB-5 visa, you must invest a minimum of $1,000,000 in a US business. This amount may be lowered to $500,000 if you invest in a “targeted employment area.”

 

A targeted employment area is either an area of high unemployment or a rural area.

 

Benefit of Investing Additional Capital in Your E2 Company to Get an EB-5 Visa

 

One of the main benefits of investing additional capital in your E2 business to get an EB-5 visa has to do with the minimum investment amount.

 

If you choose to invest in your E2 business to get an EB-5 visa, the amount of your initial investment to get the E2 visa, and all additional capital invested into the business may count toward the minimum investment amount to get an EB-5 visa.

 

So if you’ve already made an initial investment of $100,000 in your E2 company, to get your E2 visa, this amount may count toward your EB-5 minimum investment amount.

 

Example:

 

  • Initial Investment in E2 business: $100,000

 

  • Minimum Investment Amount for EB-5 Visa: $1,000,000

 

  • Current Total Required Investment for EB-5 visa: $1,000,000 - $100,000 = $900,000

 

Important Note:

 

Retained earnings do not count toward your EB-5 investment. The money that your E2 business has earned, and is currently in your E2 operating account does not count toward your EB-5 investment. In order for business earnings to count toward your EB-5 investment, you will have to pull the money out of the company and re-invest it in the E2 company. From a financial standpoint this makes no sense. Yet, it is what is required for immigration purposes.

 

One important consideration will be whether your E2 company is located in a targeted employment area or not.

 

Ideally, to qualify for an reduced investment, your E2 business should be located within a targeted employment area. This would allow for the reduced minimum investment amount of $500,000.

 

If the E2 business is not located in a targeted employment area, your minimum investment amount will likely be $1,000,000, assuming that you will invest in your E2 company. There may still be a way to qualify for the reduced investment amount by moving your E2 business to a targeted employment area. Contact me directly at Michael@AshooriLaw.com to discuss this option further.

 

If you choose to invest in a regional center, a new business, or an existing business different from your E2 company, you can still qualify for the reduced investment amount if the business is located in a targeted employment area.

 

Be sure to consult with an immigration lawyer before making any investment decisions. They can help you determine if the area you are considering investing in qualifies as a targeted employment area.

 

iii. Create 10 Full-Time Jobs for US Workers

 

  • To get an EB-5 visa, you are required to create 10 full-time jobs for qualified US workers.

 

  • Full-time means at least 35 hours a week.

 

  • Qualified US workers include US citizens, lawful permanent residents, and other immigrants that are authorized to work for your company.

 

  • Nonimmigrants do not qualify toward the 10 jobs.

 

  • Your children and spouse do not count toward the 10 jobs.

 

Benefit of Investing in Your E2 Company to Get an EB-5 Visa

 

Another benefit of investing in your E2 business to get an EB-5 visa is that the jobs you already created through your initial E2 investment may count toward the 10 jobs you are required to create.

 

So if you have already hired 5 qualifying US workers for your E2 business, you may only need to hire 5 additional workers to get your EB-5 visa.

 

iv. Lawful Source of Funds

 

To get an EB-5 visa, your funds must come from a lawful source. Your funds cannot be derived from any illegal activity.

 

Examples of lawful sources of funds are:

 

  • Income from lawful employment

 

  • Income from the sale of a property

 

  • Income from the sale of a business

 

  • A gift

 

  • A loan

 

The E2 visa also requires that your funds come from a lawful source. But, the source of funds requirement for the EB-5 visa is more strict than the source of funds requirement for an E2 visa.

 

If you are planning on converting your E2 visa to an EB-5 visa, make sure to consult with an immigration lawyer. They will help you plan how to prove that your funds come from a lawful source. They will also provide you with a detailed list of documents that must be included with your EB-5 petition.

 

v. Funds Must be At-Risk

 

Similar to the E2 visa, to get an EB-5 visa, your investment funds must be “at-risk.” This means that your funds must be subject to gain or loss.

 

The investment capital cannot just sit in a bank account as reserves. The funds must actually be spent for the business.

 

vi. Engage in the Management of the New Commercial Enterprise

 

To get an EB-5 visa, you are required to “engage in the management” of the new commercial enterprise.

 

You can satisfy this requirement by:

 

1. Handling the day to day managerial responsibilities; or

 

2. Exercising policy formulation

 

If you are investing in your E2 business, this should not be a problem.

 

The E2 visa requires that you direct and develop the E2 business. The “direct and develop” requirement of the E2 visa requires much more involvement in the business than the EB-5 requirement to “engage in the management of the business.”

 

So if you are currently meeting the “direct and develop” standard, you can either continue this level of involvement once you convert to an EB-5 visa or you can lessen your involvement to merely exercising policy decisions.

 

Now that you’ve read how to go from an E2 visa to an EB-5 visa, lets discuss other options to convert your E2 visa to a green card…

 

b. Company Sponsored Green Card

 

Another way to go from an E2 visa to a green card is by having a company sponsor you for a green card by giving you or your spouse a job offer.

 

One unique benefit of the E2 visa is that it permits your dependent spouse to apply for work authorization. You as the primary E2 visa holder are only permitted to work for the E2 company. However, if your spouse gets work authorization, they can work in any lawful capacity.

 

To get a green card through a company sponsorship, a US employer must get an approved Labor Certification through the Department of Labor, you must get approved for either EB-2 or EB-3 visa, and you must adjust your status or get a visa abroad.

 

This is a 3 part process:

 

1. Company Gets Labor Certification

 

2. You Apply for the Employment-Based Visa

 

3. Adjustment of Status or Visa Processing

 

i. Labor Certification

 

In order for a company to sponsor a foreign worker for a green card, they have to get a labor certification from the US Department of Labor. This process is called a PERM Labor Certification.

 

The Labor Certification process is designed to prove 2 things:

 

1. That there are not sufficient qualified US workers that are willing and available to fill the position being offered by the US company; and

 

2. That hiring a foreign worker wont adversely affect the wages and working conditions of US workers with similar jobs.

 

To briefly summarize the labor certification process:

 

  • Your prospective employer is required to go through certain job recruitment activities, such as posting job listings in local newspapers.

 

  • The employer must be unsuccessful in finding a qualified US worker.

 

  • The job requirements must be typical for the position and cannot be unduly restrictive.

 

  • Your prospective employer must offer you a full-time, permanent position.

 

  • Your prospective employer must pay you the “prevailing wage” or more, for the position you are hired for.

 

  • The prevailing wage is the average wage paid to workers similarly employed in the area of intended employment.

 

  • Your prospective employer must demonstrate that they have the ability to pay you the prevailing wage.

 

ii. You Apply for an Employment Based Visa

 

Once the Labor Certification is approved, you must then apply for and get approved for an employment-based immigrant visa. This is separate from the labor certification. To do this, your US employer will file a Form I-140 on your behalf.

 

There are 2 main employment-based immigrant visa classifications that correspond to the PERM Labor Certification:

 

  • The EB-2 Visa

 

  • The EB-3 Visa

 

The EB-2 visa is available to advanced degree professionals or persons with exceptional abilities.

 

The EB-3 visa is available to certain skilled workers, professionals, or unskilled workers.

 

iii. Adjustment of Status or Visa Processing

 

  • Lastly you will need to either adjust your status or apply for an immigrant visa at a US consulate abroad.

 

  • An adjustment of status is done by filing a Form I-485.

 

  • Visa processing is done by filing a Form DS-260.

 

  • As mentioned above, an adjustment of status is only available for people currently in the United States in lawful status. Alternatively, you will have to apply for an immigrant visa at US consulate abroad.

 

c. EB1A Visa if You Have an Extraordinary Ability

 

Another option for going from an E2 visa to green card is the EB1A visa.

 

The EB1A visa is an immigrant visa for people with extraordinary abilities in either the arts, sciences, athletics, education, or business. Extraordinary ability means that you are one of the small percentage who have risen to the top of your field. You can learn more about the EB1A visa here.

 

In order to qualify for an EB1A visa, you must prove 3 things:

 

  • That you have an extraordinary ability

 

  • That you will work in the USA in your field of extraordinary ability

 

  • That your entry to the United States will substantially benefit the United States

 

One of the benefits of an EB1A visa is that it does not require an employer to sponsor you. You can file an EB1A visa on your own behalf without a job offer or a company sponsorship.

 

d. National Interest Waiver

 

Another option for going from an E2 visa to green card is the national interest waiver. The national interest waiver is a subcategory of the EB-2 visa and is available to advanced degree professionals or persons with exceptional abilities.

 

In short, the national interest waiver is basically a waiver of the requirement to have an approved labor certification from a US employer. With a national interest waiver, you can apply for an EB-2 visa without a company sponsor and without a US job offer. 

 

You can learn more about the national interest waiver here.

 

In order to qualify for a national interest waiver, you must satisfy 4 requirements:

 

  • You must qualify for an EB-2 visa (minus the labor certification)

 

  • The field you plan to work in must have substantial merit and national importance

 

  • You must be well positioned to advance your proposed endeavor

 

  • You must demonstrate that it is in the United States’ national interest to waive the requirement for you to have a US job offer from a company with an approved labor certification.

 

e. Marriage-Based Green Card

 

Another option to go from an E2 visa to green card is through marriage. A bona-fide legitimate marriage to a US citizen or lawful permanent resident may confer immigration benefits. Feel free to email me directly at Michael@AshooriLaw.com to discuss this option further.

 

3. Conclusion

 

You are now in a much better position to understand the E2 visa, and how to go from an E2 visa to green card.

 

The E2 visa is a great option that allows you to live and work in the United States by investing in a US company. Yet, the E2 visa is a non-immigrant visa, so it does not directly lead to a green card. In order to go from an E2 visa to green card, you must apply for and get approved for an immigrant classification.

 

Some of the immigrant visa classifications you should consider are: the EB-5 visa; a company sponsorship; EB1A; National Interest Waiver; and a marriage-based green card.

 

This is a lot of complex information. If you have any questions, or if you need help going from a E2 visa to green card, email me directly at Michael@AshooriLaw.com. I would be happy to answer your questions and help you.

 

Ashoori Law is a Los Angeles based immigration law firm focused on helping professionals and entrepreneurs get visas to the United States.

 

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