E2 Visa vs EB-5 Visa – The 7 Key Differences

The E2 visa and the EB-5 visa are both great options to consider if you are an investor or entrepreneur looking to come to the US.

At first glance, both of these visas appear to be very similar. Both visas allow you to come and work in the US based on making an investment in a US business.

Yet, both of these visas are very different in many ways.

The right visa for you will depend on your particular immigration goals and your individual circumstances.

This article will go over the 7 main differences between the E2 visa and the EB-5 visa.

When you are finished reading, you should have a better understanding of which visa is best for you.

If you have any questions about any of the points we cover, feel free to email me at contact@ashoorilaw.com. I’m here for you.

Now, lets get started…

1.Nonimmigrant vs. Immigrant Visa

The first major difference between the E2 visa and the EB-5 visa is that the E2 visa is a nonimmigrant visa, and the EB-5 visa is an immigrant visa.

Nonimmigrant visas are temporary and do not directly lead to a green card.

Immigrant visas lead to a green card and lawful permanent residence in the US.

This means that with an EB-5 visa you are eligible to get a green card and become a lawful permanent resident.

With an E2 visa, you can still live and work in the United States while you are in lawful status, but your visa will not directly lead to a green card. In order to go from an E2 visa to a green card, you will need to “adjust status” to an immigrant visa status, or apply for an immigrant visa.

Also, because the E2 visa is a nonimmigrant visa, you are required to have the “intent to depart” the US once your E2 status ends.

The EB-5 visa does not require you to have the intention of leaving the US.

2.Nationality Requirement

The next major difference between the EB-5 visa and the E2 visa has to do with your nationality.

The E2 visa is only available to people possessing the nationality of a country with an E2 treaty with the US.

To confirm whether your country has an E-2 treaty with the United States, visit the U.S. Department of State Treaty Countries page.

I’ve also typed out the list of countries here:

Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, Taiwan, Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, South Korea, Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Serbia, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Yugoslavia.

There are quite a few major countries that do not have E2 treaties with the United States, including:

• China

• Russia

• Brazil

• India

This means that nationals from countries that do not have E2 treaties with the US are not eligible for an E2 visa.

On the other hand, the EB-5 visa has no nationality requirement. You can be a national from any country and be eligible for an EB-5 visa.

3.Minimum Investment Amount

The next major difference between an E2 visa and an EB-5 visa has to do with you minimum investment amount.

For an EB-5 visa, you are required to invest a minimum of $1 million in a US business. If you invest in a “targeted employment area” you can qualify to invest a reduced amount of $500,000.

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

On the other hand, the E2 visa does not have a set minimum investment amount. To get an E2 visa, you need to invest a “substantial” amount in a US business. The regulations do not clearly define a set minimum amount that is considered substantial.

Instead, the minimum investment amount for an E2 visa is based on a “proportionality test.”

This means that, for an E2 visa, the amount you invest will be compared to the total amount of a comparable established business.

For lower cost businesses, your investment is expected to be a larger proportion of the total established business cost. For higher cost businesses, your investment can be a lower proportion of the overall established business cost.

This concept can be confusing.

As a rule of thumb, we recommend that your investment should not be less than $50,000 for an E2 visa.

4.Creation

The next major difference between the E2 visa and the EB-5 visa has to do with job creation.

To get an EB-5 visa, you are required to create 10 full-time jobs for US workers. These jobs must be created before you get your permanent green card.

To get an E2 visa, there is no formal requirement for you to create jobs.

Instead, to get an E2 visa, you must show that the business you are investing in is not “marginal.”

A marginal business is a business that does not have the present or future capacity to generate enough income to provide more than a minimal living for the E2 investor and their family.

So to meet the marginality requirement for an E2 visa, you can show that your business will generate enough income to provide more than a minimum living for you and your family.

You could also meet the marginality requirement by showing that your business will have the need to hire US workers and therefore have a positive impact on the US economy.

So for an E2 visa, you can show US job creation but it is not necessary the same way it is for an EB-5 visa.

5.Source of Funds

For the E2 visa and the EB-5 visa, you are required to show that your investment capital was earned lawfully.

Some examples of lawful sources of funds are:

• Earnings from lawful employment

• Earnings from the sale of a property

• Earnings from the sale of a business

• A Gift

• A loan

• And many others

While both the E2 visa and the EB-5 visa require that your funds come from a lawful source, the difference is in how strictly this requirement is enforced.

To get an EB-5 visa, the lawful source of funds requirement is scrutinized more heavily than for an E2 visa.

For an EB-5 visa, you should be prepared to provide a lot of documentation proving exactly how your funds were obtained.

6.Timeline

The next major difference between the E2 visa and the EB-5 visa has to do with the length of time it takes to get the visa.

It takes much longer to get an EB-5 visa than it takes to get an E2 visa.

See below for a detailed explanation:

The EB-5 process is a very long and multi-step process:

Step 1 – I-526 Processing

• The first step to get an EB-5 visa is to file a Form I-526.

• It currently takes about 18 months on average for USCIS to process an I-526.

Step 2 – Adjustment of Status or Visa Processing

• The second step to get an EB-5 visa is to “adjust status” or go through consular processing.

• Adjustment of Status: takes about 6 months

• Consular Processing: takes about 8 to 12 months

Step 3 – Conditional Lawful Permanent Residency:

• After you complete Step 2, you get a 2 year conditional green card.

Step 4 – I-829 Processing

• 3 months before your conditional green card expires, you are supposed to file a Form I-829 to become an unconditional green card holder.

• The current processing time for the Form I-829 is roughly 2.5 years.

As you can see, the EB-5 process is long and takes multiple steps.

On the other hand, the E2 visa is much quicker and the process is easier. 

There are 2 ways to apply for an E2:

• Change of Status

• Visa Processing

Change of Status:

• A Change of Status is done entirely in the US.

• The regular processing time for a Change of Status is about 3 months

• You can pay an additional fee for Premium Processing to get your application processed in 15 days.

• These are the forms that your attorney will file:

• Form I-129 as well as the E Supplement

• Form I-539 for your dependents

Visa Processing:

• Visa Processing is done in a US Consulate abroad

• This process takes about 3 months

• These are the forms that your attorney will file:

• Form DS-160

• DS-156 E

• DS-160s for your dependents

7.Work Authorization

The next major difference between the E2 visa and the EB-5 visa has to do with your ability to work in the US.

Both visas authorize you to work in the US.

The difference is in the extent to which you can work.

E2 Visa

• With an E2 visa, as the principal investor, you are only allowed to work for the E2 business.

• You are required to come to the US to “direct and develop” the E2 business.

• Your spouse can apply for work authorization to work for any company.

EB-5 Visa

• With an EB-5 visa, you are authorized to work for any company.

• You are still required to “engage in the management” of the EB-5 business. But you can work for other companies as well.

• Your spouse can also work for any company.

Conclusion:

There are 7 main differences between the E2 visa and the EB-5 visa:

1. The E2 visa is a nonimmigrant visa. The EB-5 visa is an immigrant Visa.

2. The E2 visa is only available to people who possess the nationality of a country with an E2 treaty with the US. The EB-5 visa is not limited to certain countries.

3. The EB-5 visa requires that you make a minimum investment of $500,000. The E2 visa has no minimum investment amount, but requires that you invest a “substantial” amount of capital.

4. The EB-5 visa requires that you create 10 full-time jobs for US workers. The E2 visa has no job creation requirement. Instead, the E2 visa requires that your business not be “marginal.”

5. Both the E2 visa and the EB-5 visa require that the source of your investment funds be lawful. For the EB-5 visa, this requirement is enforced more strictly.

6. Getting an E2 visa is much faster than getting an EB-5 visa. The E2 visa can be processed in as little as 15 days with premium processing. The EB-5 visa currently takes about 2 years to process.

7. With an E2 visa you, as the principal E2 investor, can only work for the E2 company. With an EB-5 visa, you can work for any company.

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Now that you’ve read the 7 differences between the E2 visa and the EB-5 visa, you should have a better idea about which visa is best for you.

Still, before you decide on which visa you will apply for, I highly recommend consulting with an experienced immigration lawyer.

An immigration lawyer can help you pick the best visa option based on your individual goals and circumstances.

You may find out that there is a visa option that better suits your needs than either an E2 or EB-5 visa.

An immigration lawyer can also give you an idea of how likely it is that your application will be successful.

Ashoori Law is a full-service immigration law firm focused on helping investors and entrepreneurs get visas to the United States.

We would be happy to answer any questions you have. Feel free to reach me directly at contact@ashoorilaw.com

Helping investors and entrepreneurs succeed is one of my passions and I would love to help you as well!