There are multiple options for foreign nationals who wish to invest in the United States. Investment can be done as a treaty trader or as the employee of a treaty trader; as a treaty investor or as its employee, or as an EB-5 investor. Each type of visa requires something slightly different and that is why a careful analysis of the particular circumstances of the case is key.
E1 (Treaty Trader)
Foreign nationals of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) may be admitted to the United States to engage in international trade on his or her own behalf. Substantial trade to be carried on mainly between the U.S. and the treaty country is required. Treaty traders and treaty trader employees are given a maximum initial stay of 2 years. Requests for extension may be granted in increments of up to two years each and there is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.
E2 (Treaty Investors)
Foreign nationals of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) investing a substantial amount of capital in a U.S. business can be granted this visa. Certain employees of such a person or qualifying organization may also be eligible for the classification. A maximum initial stay of two years is granted and extensions of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions, but all E-2 nonimmigrants must maintain an intention to depart the United States when their status expires or is terminated. A bona fide enterprise must exist. A treaty investor or employee may only work in the activity for which he or she was approved. An E-2 employee may also work for the treaty organization’s parent company or one of its subsidiaries as long as the relationship between the organizations is established, the subsidiary employment requires executive, supervisory, or essential skills, and that the terms and conditions of employment have not otherwise changed. Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.
EB 5 Program
The “EB-5” program was created by Congress to stimulate U.S. economy through job creation and capital investment by foreign investors. Certain EB-5 visas are set-aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. A foreign national may obtain conditional residency (valid for 2 years), and eventually lawful permanent residence through the investment in a U.S. commercial enterprise. These are some of the main requirements for this program:
- Investment of at least $1 Million U.S. dollars in the business. (The amount can be reduced to $500,000 if the business is located in a targeted employment area, which includes rural areas with a population of less than 20,000, or a geographical area determined by the Department of Labor to have an unemployment rate equal to 150% of the national average).
- The funds invested must be “at risk.”
- The investor must be able to prove a lawful source of the funds being invested, and that the funds belong to the investor.
- The investment in the business must create jobs for at least 10 U.S. workers (the job creation can be direct or indirect).This is what is commonly known as the "job creation requirement."
- The investor will serve as a corporate officer or director, involved in management and policy-making.
Note that the requirements for the EB-5 program can be met by investing in a troubled business, which has lost at least 20% of its net worth. The investor must, however, establish that current employees will be retained. Also, an investor may participate in the EB-5 program by investing $500,000 in a Regional Center with multiple investors, as long as all the other legal requirements are met.