This article addresses the question of how to convert a U.S. E-2 work visa into U.S. permanent residence, often referred to as a green card. For some investors, the challenge of being taxed on worldwide income by becoming a permanent resident of the United States will prevent them from doing this. However, there are many investors who, through sound tax planning, will have organized their affairs in such a way that this will not be a problem. In a previous article I discussed how an investor could obtain a U.S. E-2 visa indirectly, using the Grenada Citizenship by Investment Program as an interim step, for those investors whose countries do not have an investment treaty with the United States. (These would include investors from countries like China, Russia, Brazil, Dubai, Lebanon and many of the Arab states.) Some of these investors may very well want to apply under the EB-5 program after securing such an E-2 visa, assuming this can be achieved without losing their current citizenship. For such individuals, or indeed for anyone currently holding a U.S. E-2 visa, this article may be helpful. So here are five ways of converting an E-2 visa into a green card.
1. Invest more money and get an EB-5 green card
Invest $ 1 million and get U.S. permanent residence through a direct EB-5 program application.
Originally, an applicant coming into the United States to start a business on an E-2 work visa has to invest a certain amount of money. Although there’s no minimum amount, generally I like to suggest investing $200,000 USD and creating five positions for employees over the course of five years to get the applicant the E-2.
If a person has even more money however, they could apply for an EB-5 investment green card while they continue to operate their business in the U.S. under their E-2 visa. The requirements for an EB-5 green card are far more costly, though. Currently $1 million dollars has to be invested and 10 new jobs have to be directly created by the applicant’s company to qualify. It’s important, however, that the money used for this investment be traceable. If invested from abroad, the source and path of funds needs to be documented and be clean. The extra funds cannot have been generated inside the USA by the E-2 business unless they are paid out to the investor and the investor pays U.S. taxes on the amounts taken before reinvesting them so as to qualify for the $ 1 million direct investment EB-5 green card.
2. Invest in a regional center project and get an EB-5
Rather than directly investing $1 million into one’s own company, one could invest $500,000 into an EB-5 regional center project and be a passive investor there, while continuing to operate one's own E-2 visa business as well. The required 10 new jobs can be created indirectly this way by the regional center project. This is a slightly cheaper way to get a EB-5 green card. However, it does tie up the investor's money in the regional center project for 5 years until it can be rebated to the investor. The same conditions on the trace-ability of the money apply as they did for the direct investment.
3. Have an employer sponsor you
Employment-based sponsorship can lead to a green card. Pic: Flickr
One could find an employer that could sponsor you, or perhaps your spouse, for a green card. In some instances, if one is hired for the right position, and has good enough qualifications to show exception ability, one could even get an exemption (a National Interest Waiver) from a PERM labor certification. This would significantly speed up and simplify the conversion to a green card. Otherwise, the employer has to undertake a recruitment campaign to show there are no native U.S. workers capable of filling the position, documenting all the steps taken at local recruitment. This would entail advertising the position as open in a major newspaper, posting it on line with employment web sites, engaging a head hunter to search out applicants, etc. The process is difficult and almost an art, but it can be done. It goes without saying that the employer can’t be the company one founded with their E-2 visa.
4. Be sponsored by a family member
Family based sponsorship can lead to U.S. permanent residence.
If one has a close relative in the U.S. that is a citizen or green card holder, that relative can sponsor the investor for a green card while the E-2 investor continues to work and manage their business.
If no family member has a green card at the time, there are a number of ways one could go about acquiring one. For example, a spouse or a child of the E-2 investor might go to school to get themselves an advanced degree, and then get themselves a sponsorship by a US employer and get either a PERM labor certification, or a National Interest Waiver. Alternatively, a child might marry a U.S. citizen to be sponsored for a green card. Once they have a green card, they could then sponsor the E-2 visa holder.
5. Create a new business outside the U.S.
One could create a sufficiently large company outside the U.S., and then work for it as a manager for one year and then return to the U.S. as a permanent inter-corporate transferee.
If the E-2 visa holder can’t do this themselves, they could consider having their spouse run the foreign company, then come in on the green card. This would make it possible for that spouse to include the E-2 holder under their permanent application.
Things to remember when trying to convert an E-2 into a green card
The Green Card comes with a number of requirements that an E-2 visa does not. Chief among them is the requirement to spend a significant amount of time in the U.S. If your permanent resident related business involves you being out of the country for a significant amount of time, this can be a risk. U.S. immigration, when they grant a person a Green Card, wants the applicant to mostly stay in the U.S. and build roots here. If not, a person risks losing the Green Card.
Another thing to remember is that while a person can apply for a green card while in the U.S. and stay until it is actually approved, at the point when the green card is granted, they usually have to leave the country and re-enter on the green card.
There are a number of different considerations that should be reviewed with a lawyer. However, if one wants to eventually become a U.S. permanent resident, rather than live here on a temporary visa, these are some ways to do it.