US Investment-Based Visa Types

EB-5 Immigrant Investor Program

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• Open to everyone
• The visa is the Green Card (lawful permanent residency)
• Investment covers investor, spouse and children under 21 (at time of filing)
• Minimum investment of $800K (in high unemployment/rural areas) or $1.05 million elsewhere
• Must create 10 jobs (per investor)
• Slow processing time (2 years, more for some countries like China and Vietnam).

The EB-5 Immigrant Investor Program:

A Comprehensive Update Following the 2022 Reforms

In 1990, the United States Congress created the EB-5 Immigrant Investor Visa Program as a mechanism to stimulate the U.S. economy through job creation and capital investment by foreign investors. This program has since served as a gateway for qualified investors and their immediate family members to secure lawful permanent residency in the U.S. The recent passage of the EB-5 Reform and Integrity Act of 2022 has introduced pivotal changes aimed at enhancing the program’s efficiency, integrity, and overall impact on the American economy.

Revised Investment Thresholds

A foundational aspect of the EB-5 program is the investment requirement, which has been increased for the first time in over twenty years. Investors are now required to invest a minimum of $1,050,000 to eligible U.S. enterprises. However, a reduced investment amount of $800,000 is applicable for projects situated within Targeted Employment Areas (TEAs)—either rural regions or areas experiencing high unemployment rates. These adjustments aim to direct investment into parts of the country that would benefit most from economic infusion.

Job Creation Mandate

Central to the EB-5 visa’s mission is the creation or preservation of 10 full-time jobs for American workers by the entity into which the EB-5 investment has been made.  Under the new law, only a single EB-5 investor can invest in a ‘direct’ EB-5 project.  For multi-investor or pooled projects, the project must be affiliated with a Regional Center, registered by  USCIS.  Direct projects count job creation by tracking the number of actual jobs created.  Jobs must be full time (35 hours per week).  Regional centers calculate jobs through the use of econometric calculations, which are primarily based on the amount of capital expenditures and resulting revenues of the project.

The job creation requirement must be fulfilled within two years of the investor’s admission to the U.S. as a Conditional Permanent Resident.

Targeted Employment Areas

A significant update to the EB-5 regime was in the creation of set asides, or separate pools of visas, for those investing in targeted employment areas.  This was first proposed by Matt Gordon during his 2016 testimony to the House Judiciary Committee.  Each year, 20% of the annual EB-5 visas are reserved for investments in rural projects, 10% are allocated for projects in high-unemployment areas, and 2% are set aside for infrastructure projects. These set-asides are designed to direct investment into regions and projects deemed as high-priority by the legislation, with the intention of supporting economic development and job creation in these specified areas.

Rural based investments are also afforded priority processing under the law.  Currently, it appears that these projects and the investors are being processed faster, but it is uncertain whether it is a systemic improvement in processing times for these investors and projects, as many non-rural based investors and projects have also noted improved processing times.

Concurrent Adjustment of Status

One of the more important new benefits is that EB-5 petitioners, who are located in the United States (legally) at the time of their application, can file for adjustment of status, which includes work authorization (EAD) and advanced travel parole.  Having the ability to work and travel freely provides the vast majority of the benefits conferred by the green card itself.  Given the potential for significant processing delays due to retrogression (see below), the ability to adjust status and wait out the wait time, is tremendous.  Note, those who are overseas at the time of filing, still must wait for their visa category to be current.  Likewise, adjustment of status is only available if the visa category is current.

Retrogression and Processing Delays

Current processing times are very difficult to assess.  Current cases are taking 12 months to process, both in our experience and as reported by others; however, the USCIS website reports 54 month processing times (for non-Chinese investors) and 89 months for Chinese.  To make matter even more confusing, those who invested prior to the new law seem to take far longer than more recent investors.

For investors prior to the new law from China and India, the delays are due to ‘retrogression’.  This is where the number of visas sought from a country exceeds those allocated to that country.  The wait times can become quite significant, extending the amount of time before a visa is available by many years if not a decade or more.

For those contemplating investing now from India and China, the set aside (TEA) categories are all current, so filing sooner than later can be critically beneficial.  In particular for those who seek adjustment of status, as that is not available once the category goes into retrogression.  For India and China, many in the industry believe that this will occur for High Unemployment TEAs shortly.  Based on available data, Rural TEAs seem safe for the next few years.  For those in other countries, process time should be in the 1-2 year area.  Over time, we’ll see if the priority status granted Rural TEA petitions has a consistent advantage over other petitions.

The EB-5 Process

The EB-5 application has two parts.  One part is documenting that the business into which the EB-5 capital is to be invested is credible and is likely to create the requisite jobs.  If the project is ‘direct’, it requires a detailed business plan and job creation timeline.  For a regional center affiliated project, in addition to the business plan, there needs to be an econometrics report (which establishes the job creation) and a relationship with a Fund Administrator (unless the project has audited financials).  The regional center affiliated projects also must file for project approval (I-956F).  The budget to prepare a regional center affiliated project can be $100,000 or more.  The filing fees for the I-956F just increased to $47,695 (an increase of nearly $30,000).

The second part of the application process is the I-526 filing submitted by investors. Here, the investor is required to prove that the source of his or her funding is from legal sources.  This is an exhaustive analysis of the funding going back to wherever the money came from.  If the capital is from gifts or inheritance, the analysis jumps over to the ‘donor’ of the funds.  Source of funds analysis are often hundreds (and even over 1,000) pages of analysis and supporting documentation.  Current rates for a typical case is approximately $25,000.  The filing fees for the I-526 petition is now $11,160 (up from $3,765).   Other typical costs can include translation services for any non-English language documentation.

Removal of Conditions – The I-829

After approval of the I-526 petition and receipt of the investor’s green card, the investor is technically a ‘conditional’ lawful permanent resident. The condition is that the company receiving underlying investment, the NCE, will create the needed jobs. Following the start of the lawful permanent residency status, the investor then must file a petition to remove the condition on Form I-829. At this stage the NCE provides the investor’s immigration attorney with all the needed information to prove that the funds were spent according to the business plan and that the job creation has occurred.

Structural Considerations of EB-5 Compliant Projects

All EB-5 projects are subject to certain structural limitations. Most notably, the investment capital must be ‘at risk’. This means that the investment is subject to total loss so all investments into the entity that accepts the capital (called a New Commercial Enterprise or NCE) must be equity investments. If the investment in the NCE is guaranteed or collateralized in some way, the structure would violate the regulations. Note, many regional center projects utilize a more complex legal structure for the investment, due to their ability to prove labor creation through econometric formulas. Technically, the formulas are determining the indirect and induced labor created through the economic activity. This is the activity of firms other than the NCE. In these projects, the sponsors separate the NCE, which accepts the investor capital, from the job creating entity (JCE), which undertakes the project. The NCE, after receiving the capital as an equity investment, can then invest in the JCE as either an equity investment or a loan. The loan can and often is collateralized by the assets of the JCE. Often, sponsors and practitioners gloss over the structural distinction between the NCE and the JCE. It is always the case, if properly structured that the investment into the NCE will be an equity investment for which there can be no guarantee or rights to collateral owed directly to the investor. Any rights of these sorts will be owed only from the JCE to the NCE and not to the individuals.

The investment must also be irrevocable, meaning that the investor does not have the right to demand repayment at a particular time or upon a set of predefined events. Furthermore, the investment must remain invested (and at risk) for at least two years following the investment.  This is a significant improvement over the prior (and confusing) timeline for keeping capital in a project.  Keep in mind, most project sponsors will contractually require that the capital remain in the project for a longer period of time, which is perfect legal.  The two year period is a minimum, not a maximum.  Additionally, like under the old regime, investors cannot negotiate for a return of capital based on a previously agreed upon set of conditions.

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E-1 Treaty Trader Visa

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• A treaty-based investment visa that is only available to citizens of countries with the correct type treaty with the US.
• Must own a business in the ‘home’ country that currently engages in substantial trade or business with the US.
• Very fast processing (a few weeks or months).
• The visa (ability to enter the US) is typically 1-5 years, shorter in the case of a few countries.
• Renewable for an unlimited number of times (fewer renewals for a few countries)
• Dependent visas for Spouse (can get EAD) and children under 21 years old.

The E-1 visa is an investor treaty-based visa.  It is a non-immigrant visa that allows the applicant to live in the US to manage or direct the US-based business affairs for the applicant’s current company.  The applicant’s spouse can receive an EAD and the children (if foreign born) can attend school (domestically born children are US citizens and do not require visas).

No investment is required in the US nor is it necessary to set up a US company to act as a subsidiary of the foreign sponsor business.  It is generally required as a matter of state law for the foreign business to register in the state in which it locates its offices or operations.

The visa itself is typically granted for one to five years (with some exceptions) and are typically renewable for an unlimited number of times so long as the underlying business meets the qualifications.  For a full listing of visa terms and number of renewals for each country with whom the US has a treaty, click here:

Note, to qualify for a E2 visa, an investor does not have to be currently residing in a treaty country. However, the investor does have to be citizen from a treaty country.  It is not enough to just maintain a legal permanent residency in a treaty country.

One of the key criteria for an E-1 business is that the investor is actively involved in developing or directing the US business activities.  The degree to which an investor must actively manage the business is an often-misunderstood topic.  Legally, there are ways to satisfy the ‘active involvement’ requirement without being the day-to-day manager.  To do this, the E-1 business and management arrangements must be carefully constructed.  It is also possible for an E-1 to sponsor one or more key employees for E-1 visas. The employees must come from the same country, be a supervisory employee, and essential to running the company.

The E-1 visa cannot be converted into a green card.

A key to the application is to prepare a very thoroughly documented business plan that clearly shows the substantial nature of the trade or business being conducted with the US, the labor creation and the other elements required.  It is important to note that different consulates often have different rules of how they interpret the regulations, which will therefore change what is included in the application to some degree. Visas will not be approved based on purely prospective business plans and forecasts, the sponsoring business must already be engaged in active trade with the US.

The trade or business in the US can be any legal business or trade.  It is best to avoid potentially issue laden industries such as cannabis, even if legal in a state, as they may run afoul of federal laws.

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E-2 Treaty Investor Visa

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The E-2 visa is an investor treaty-based visa. It is a non-immigrant visa that allows the applicant to live in the US to manage or direct his or her investment. The applicant’s spouse can receive an EAD and the children (if foreign born) can attend school (domestically born children are US citizens and do not require visas).

The regulations do not specify an exact amount of investment. The business must be material and is required to produce enough income to support a living wage for the applicant. Typically, the minimum amount of a business the applicant will manage directly, to be safe, is $150,000. Often, when investing in a business created by a third-party, investment amounts required can be $300,000 or more (due to the nature of the business, not the regulations). There is no limit on the size of the investment.

The visa itself is typically granted for one to five years (with some exceptions) and are typically renewable for an unlimited number of times so long as the underlying business meets the qualifications. For a full listing of visa terms and number of renewals for each country with whom the US has the needed treaty,Click here:

Note, to qualify for a E2 visa, an investor does not have to be currently residing in a treaty country. However, the investor does have to be citizen from a treaty country. It is not enough to just maintain a legal permanent residency in a treaty country.

One of the key criteria for an E-2 business is that the investor is actively involved in developing or directing the investment enterprise through at least 50 percent ownership or managerial control. Typically, the investor must own at least 51% of the business (two investors from the same country can own 50% each). The degree to which an investor must actively manage the business is an often-misunderstood topic. Legally, there are ways to satisfy the ‘active involvement’ requirement without being the day-to-day manager. To do this, the E-2 business and management arrangements must be carefully constructed. It is also possible for an E-2 investor to sponsor one or more key employees for E-2 visas for no additional investment capital. The employees must come from the same country, be a supervisory employee, and essential to running the company.

The E-2 visa cannot be converted into a green card; however, it is entirely possible to use the initial E-2 investment as the basis for a petition for a green card based on the EB-5 category. The EB-5 process is open to citizens of all countries. The negatives are the cost and processing speed. To qualify for EB-5, the total business investment is $800,000 in a high unemployment area and $1.05 million otherwise. For a more fulsome description of the EB-5 visa see here

US regulations require that the capital for the E-2 investment come from funds that are owned by the investor and are legally sourced. Generally, that means that if loans are taken to provide the needed investment capital, those loans should be secured by collateral owned by the investor with a value that is at least equal to the amount of the loan. Further, the source of funds must be proven to be from legal sources, such as trade/business, investment income, gifts or inheritance.

A key to the application is to prepare a very thoroughly documented business plan that clearly shows the economic impact of the business, the labor creation and the other elements required. It is important to note that different consulates often have different rules of how they interpret the regulations, which will therefore change what is included in the application to some degree. It is also important to have taken meaningful steps towards the execution of the business plan. While some consulates will allow an investor to place funds in escrow (pending approval of the E-2 visa petition) for the purchase of an existing business, most want to see that the investment has been consummated and concrete steps undertaken. In the context of a new business, these steps can include forming the entity, completing business registrations and renting an office.

Structurally, investment capital must be ‘at risk’ meaning that there must be a risk of loss associated with the business. Accordingly, the investment cannot be a loan or guaranteed, but must be an equity investment. Additionally, the investment must be irrevocably committed, which means that the investor cannot demand her or her capital back.

The company in which the investment is made can engage in any legal business or trade. It is best to avoid potentially issue laden industries such as cannabis. Also, the business cannot be seen as being something purely passive. For example, investing in real estate would not work, as there may be nothing for the company to do with the investment once the property is acquired. In contrast, investing in a real estate services business would be perfectly permissible, even one that owned real estate as part of its activities.

Approval rates for E-2 visas are very high. As reported by the Government Accountability Office in their July 2019 study of the E-2 program , denial rates over the last five years were 16.7%; however, over 95% of the denials were premised on either investor ineligibility (e.g. not being a citizen of a treaty country) or inadequate documentation. Accordingly, if an applicant is in fact from a country with the correct treaty and that person engages qualified advisors to prepare the documentation, the denial rate can be expected to be less than 1%. Moreover, qualified advisors should help the applicant prepare for the in-person consular interview. Consular officers in all immigration matters have nearly unlimited discretion whether or not to grant a visa. It is essential that the applicant is fully prepared and as with any serious undertaking, has the right team to support his or her efforts.

The E-2 process can be implemented fairly quickly. If an applicant is applying from outside the US, the applicant would file a DS-160 (including all supporting documentation) electronically with the applicable consulate. The consulate will review the materials and allow the applicant to schedule an interview. Prior to the pandemic, this process usually took several weeks’ to a few months’ time. The visa itself is usually stamped in the applicant’s passport (and those of his or her dependents) at the conclusion of the interview. Currently, most consulates are closed and those that are reopening may not be processing DS-160 applications as they are focusing first on emergency and urgent visa matters.

If the applicant is legally in the United States, he or she may file to change status directly with USCIS by filing form I-129. Premium processing is available in which the application is then processed in 15 days. No interview is required. This allows the petitioner (and dependents) to remain in the US for two years and the status can be renewed (unless limited by the specific country treaty, see the full listing . Note, upon leaving the US, prior to reentry, the applicant would have to apply for a visa at a foreign consulate (typically that of the home country, but there are exceptions). It is important to start the visa application process with sufficient lead time so as not to affect the overall travel schedule.

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L-1A Visa

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The L1-A visa is a non-immigrant employee visa that enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

Generally, the foreign business in the applicant’s home country will set up a subsidiary in the US or will acquire a majority stake (or otherwise control) in an existing business in the US. The US business does not have to be in the same trade or business as the home country business. For an person to qualify, he or she must have worked for the home country business for at least 12 of the previous 36 months. The L-1 visa covers the employee’s spouse as well as unmarried children under the age of 21.

When opening a new office, the initial visa will be granted for one year. The visa is renewable in two-year increments for a total of seven years.

A key requirement of the L1-A visa is that the applicant serve in an executive or managerial capacity. The US business must essentially have three levels of workers: the executive (the L-1 recipient), his or her direct report managers, the workers. Essentially, the L-1A holder must be a manager of managers. Accordingly, it is difficult to have a US business that has less than five employees.

A key to the application is to prepare a very thoroughly documented business plan that clearly shows the labor creation and the other elements required.There is no minimum investment amount required to create or purchase the US subsidiary; however, in order to have enough employees it may be difficult to invest less than $300K-$400K. The trade or business in the US can be any legal business or trade. It is best to avoid potentially issue laden industries such as cannabis, even if legal in a state, as they may run afoul of federal laws.

The process requires that the applicant file the visa application (DS-160) after which the employer files the Petition for a non-immigrant worker (I-129). This must be filed at least 45 days prior to the beginning of the US employment and no more than six months prior. After beginning work, the employee can start the process to receive a green card by filing for an EB-1C classification. A key advantage of this, over other routes, is that it does not require PERM labor certification (an eight month process on average). This process should require under one year.

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