On Oct 16 2018 by F. Oliver Yang

The Emergence of Citizenship by Investment and E-2 Visa Option

The E-2 visa classification is authorized for a foreign national who is coming to the U.S. to direct and develop the operations of an enterprise in which the individual has invested or is actively involved in the process of investing a substantial amount of capital. The E-2 visa has some major benefits, such as:

  • fast processing time and a validity period of up to 5 years for certain countries;
  • the ability for the foreign national and the family members to reside in the U.S.;
  • the foreign national can work for the E-2 business;
  • the spouse can work anywhere without restriction;
  • the child can go to public or private school in the U.S.;
  • possibility to avoid taxation on worldwide income;
  • the ability to get indefinite extension after each validity period.

However, the E-2 visa is only available for foreign nationals who possess the nationality of a country with which the U.S. maintains a bilateral investment treaty or a treaty of friendship, commerce and navigation. Per the list of treaty countries published by the U.S. Department of State, the E-2 visa is available to nationals of roughly 80 countries in the world.

In recent years, delays in various immigration preference categories have brought this visa under the spotlight. In 2015, a visa cutoff date for China EB-5 was established. The current visa wait time for an EB-5 applicant born in China is likely to be beyond 10 years for someone who makes the application today. Earlier this year, a waiting list for Vietnam EB-5 was established. Meanwhile, India EB-2/EB-3 has a wait time estimated to be in excess of 15 years, and India EB-5 is expected to also retrogress in 2019. Even the EB-1 extraordinary ability category is backlogged worldwide at the time of writing. While the E-2 visa is not directly available to nationals of the abovementioned countries, through the “citizenship by investment” (CBI) programs of certain treaty countries, those investors can apply for the E-2 visa by obtaining citizenship of a treaty country before making the qualifying investment in the U.S. This visa option can be utilized in lieu of a green card, or to supplement the green card application process so that the foreign national can stay in the U.S. before they get their green card.

There are only a few E-2 treaty countries in the world that have CBI programs under which a third country national can obtain the citizenship in a short amount of time. Grenada has traditionally been the top choice for this option. Recently, Turkey, Moldova, and Montenegro also launched their own CBI program. One noteworthy issue is that the validity period of the E-2 visa differs among those countries. While citizens of Grenada and Turkey can get an E-2 visa that is valid for 5 years, the validity period is much shorter for citizens of Montenegro (12 months) and Moldova (3 months).

The Citizenship by Investment and E-2 Visa Option has its obvious advantages for certain foreign nationals from non-treaty countries:

One of the major benefits of E-2 is that it can be obtained quickly. In the case of Grenada E-2, the E-2 investor will first obtain Grenadian citizenship which can usually be done in about 4 months. The E-2 application can then be submitted to the U.S. consulate in the country of residence. The entire process generally takes about 6-7 months. Getting an EB-1 green card, on the other hand, can easily take well over a year. The quick turnaround for E-2 makes it a good option for people who are looking for a program that allows them to come to the U.S. in the shortest amount of time possible.

For those with a pending EB-5 application who are perturbed by the unprecedented wait time, they can use the E-2 visa to bring their entire family to the U.S. in 6-7 months and start living the American Dream before the final arrival of the EB-5 green card. Note that getting a third country passport would not shorten their EB-5 wait time, which is determined by the investor’s country of birth.

For those who possess the necessary language and management skills and have the aspiration to start their own business in the U.S., managing a business of a size that is suitable for an EB-1C multinational executive or manager application could be a daunting task for a new immigrant. E-2 provides an entry point for them to start their business in the U.S. before they are ready to commit further.

On the other hand, even if the foreign national has limited English language ability, it is still possible to convince the consulate that the applicant can still effectively “develop and direct” the business. Some of the E-2 businesses on the market come with a professional management team that will take over the daily management and provide language assistance. Therefore, E-2 visa is still within reach if a foreign national does not speak English very well.

Last but not least, unlike EB-5, E-2 visa does not have a minimum investment amount. Rather, the investment is considered “substantial” if the invested amount is sufficient to create or develop the type of enterprise in which the investor is investing. Many of the E-2 businesses on the market will only need an investment in the $200k range, which is significantly lower than investing in an EB-5 project or purchasing a U.S. business to apply for EB-1C. The flip side is that the E-2 investor will still need to invest additional money to obtain a third country citizenship. For Grenada, the good news is that recent legislative changes have made it possible to sell the property in the secondary market to another applicant who wishes to apply for Grenadian citizenship.

The legislative history of the E visa can be traced back to the infamous Chinese Exclusion Act and the 1880 Treaty between the United States and China. It is quite interesting to observe that 130 years later, the legislative successor of the Chinese merchants’ status under the 1880 treaty proffers a viable immigration vehicle for nationals of China and other countries with serious visa backlog issues.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2017 Klasko Immigration Law Partners, LLP.  All rights reserved. Information may not be reproduced, displayed, modified or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP.  For permission, contact dlundy@klaskolaw.com.