E-2 Visas: Roadblocks and Solutions
September 16th 2019
Feeling as if all “news” about green cards based on employment is negative?
The quota for permanent residence based on employment is now backlogged at a record level. What’s more, without real legislation action, it is a line that is set to get longer. For about 9 in every 10 applicants of the EB-5 investor visa, the current wait for processing is predicted to be around 8 to 15 years. While for India and Vietnam the wait is at least 7 years, for persons from the People’s Republic of China, 15 years is likely.
For the EB-1 visa which used to be a more rapid avenue to a green card, there is now a sustained backlog. For persons from India in the queue for EB-2 and EB-3 visas, even the Department of State’s Charles Oppenheim says that the wait does look to be “at least 50 years”.
Processing times at the USCIS have ballooned out 46% in two years and over 90% over the past four years. For persons with an intention to apply for a 1-526 petition, there will be no available time for inquiry prior to October 2015, and the wait time (processing time) is expected to be as long as 45 months.
The upshot is that people even from outside of China, India, and Vietnam pool may still need to wait over 4 and a half years to have an EB-5 process support their permanent residency.
The denial rates of the USCIS are reported to be as high as 40% across different types of nonimmigrant and employment based visas.
Naturally some clients, particularly those with children who they hope can study in the US, are concerned with such as delays of up to 15 years to enter the country. For persons from India the wait can be as long as 50 years. The question then becomes what alternative visas are possible. Some migration agents suggest the L-1 intracompany transferee visa or perhaps more likely the E-2 treaty investor visa.
Whilst there will be cases where the L-1 visa can help persons with specific situations, there are four (4) serious limitations:
- USCIS must approve the petition. The authority has a high denial rate, and tends to disfavor start-up companies and smaller entities;
- The applicants need to be approved as a U.S. business manager in a full time capacity (it is unusual for more well-off clients to have a desire [or the capability] to do so);
- The definition of “manager” used by the USCIS is highly restrictive. It has implications for the overseas activities of the applicant as well as those in the US. It also often involves a requirement of tiers of employees;
- The L-1 visa for start-up is limited to 12 months initially.
The consequence is that for most, the E-2 visa is a preferable choice. It is unique in that it is the only investment or employment based petition that does not need USCIS approval. Two months or less is the time for processing, and the rate of approvals, by most reports, has stayed relatively stable. Depending on the applicant’s nationality, there is a possibility of a 5 year visa with indefinite renewal options. This allowance can fill the gap for persons who are investing and are intending to immigrate through the EB-5 process eventually.
Another benefit of the E-2 is that when the client is employed in the US, the spouse of that client can also start his or her own business or be employed absent of sponsorship. The advantage is that one partner can manage the business of investment while the other can choose his or her employment location.
Moreover, where the L-1 forces the foreigner to be the manager of the investment business in a full time capacity, the E-2 visa allows that person to employ a manager instead. There is a different standard of involvement where the E-2 investor is able to qualify through showing that he or she is “developing and directing” the commercial operation. The implication is that the investor can even oversee the business from afar.
The option of an E-2 is available for persons investing in the US from a group of 80+ nations who have treaties with the US. For investors who are nationals of other countries, such as China, India and Vietnam, these persons must first secure citizenship in a third country that has a treaty with the US. Four popular choices for this course of action are Grenada, Moldova, Montenegro, and Turkey.
The E-2 application can be filed without delay, as soon as the client secures citizenship by investment in one of these locations. After this, the investor and his or her family can reach the US within a matter of months assuming that applicant qualifies.