Critical Differences
Between the
E-2 and EB-5
Processing
The E-2 visa can be a solution for an
investor who wants to live and work in
the United States while waiting for an
EB-5. However, since E-2 and EB-5 are
adjudicated by different agencies, there
are some key differences between their
visa processing that investors and their
advisors should keep in mind.
By Stephen P. Pazan
S
ome immigration professionals have enthusiastically
recommended the non-immigrant E-2 visa as a means
of obtaining residency in the United States during the
processing delays associated with an I-526 petition for
the EB-5 visa. As one-size-fits-all advice, this oversells
the E-2, and understates the challenges posed during E-2
adjudication.
The E-2 is best suited for the investor that desires an
active role managing and growing a business, and may not
be helpful for the investor who just wants to cut the line.
The typical Regional Center investor should be wary, and
industry professionals should be careful not to dispense
advice cavalierly.
REVIEW OF THE E-2 VS. EB-5 PROCESS
Requirements for the E-2 non-immigrant visa are found in
the section of 9 FAM 402.9-6(A). To be eligible, an investor
needs to have citizenship in a country that has the E-2
treaty with the U.S. The applicant also must have invested
a substantial amount or be in the process of investing a
substantial amount in a real and operating commercial
enterprise and be in a position to develop and direct the
enterprise. If an employee, the applicant needs to have
an executive/supervisory position or possesses skills
essential to the firm's operations in the United States; and
the applicant must intend to leave the United States when
the E-2 status ends.
Prospective migrants are often unaware that the E-2
and EB-5 are adjudicated by totally different agencies. A
Department of State Consular Officer at a U.S. Consulate
or Embassy adjudicates the E-2. I-526s are decided by
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