Beyond the EB-5 Visa Waiting Line: E-2 Visa Options for Mainland-Chinese Entrepreneurs

By: Bernard Wolfsdorf and Joseph Barnett

The EB-5 visa waiting line for mainland-Chinese has become so long that many Chinese nationals are now seeking other ways to enter the U.S. often so their children may study at U.S. universities.  Some are investigating obtaining U.S. permanent residence through the EB-1C category for multinational managers or executives (or the related nonimmigrant L-1 visa). Other have decided to explore nonimmigrant E-1 treaty trader, or E-2 treaty investor visas. There are 80 countries with treaties, but mainland China and India do not qualify (although citizens of Pakistan and Taiwan do qualify). For the E-treaty visa, the applicant must have obtained citizenship from an E Treaty Country.

One country that has become popular for E-2 treaty purposes is Grenada because of its “Citizenship by Investment Program”.  In this scenario, obtaining an E-visa is a two-step process:  First, the person needs to qualify for the Grenada passport, and then, the person must make an investment in the U.S. to qualify for a U.S. E-2 visa.

Here are five important things to know about the E-2 visa option.

1. Grenada Citizenship. The first step for a mainland-Chinese national is to obtain Grenada citizenship through the 2013 Grenada Citizenship by Investment Act. This law provides two investment options: (1) a $200,000 non-refundable donation to the National Transformation Fund, and (2) a $350,000 acquisition of property from a Grenada government real estate project, which must be held for a minimum of three years.  The process to obtain Grenada citizenship is quite simple, and there are no residency requirements.
2. E-2 Investment. Once Grenada citizenship has been obtained, the next step is to invest in a new commercial or entrepreneurial undertaking, producing some service or commodity, in the U.S. The minimum investment amount for E-2 must be “substantial.” The amount may vary based on the type of business being established or bought but can range from $100,000 to $250,000.  The more that is invested, the greater the chances of the E-2 visa being approved.  Additionally, the E-2 applicant must be in a position to develop and direct the commercial enterprise.  The use of franchises is a popular way for foreign nationals to start a business with established branding that could qualify for E-2 visa.  Another option is to buy 51% of an existing business, where the sole issue to effectuate the transaction is the issuance of the visa, which can be accomplished through use of an escrow. This provides a safe option, in that the investor can avoid having to invest if the visa is not issued. An E-2 visa application is ordinarily submitted directly to a U.S. consulate or embassy for adjudication.  Spouses can obtain unrestricted work authorization although that takes about 3-4 months to process. Minor children on E-2 visas are eligible to attend U.S. schools and universities.
3. Issues of Vetting by Grenadian Government. One of the issues of using a Grenadian passport for E-2 purposes is that Grenada does not currently collect biometric data for applicants for citizenship. While the U.S. does, it would be advisable to include documentation verifying that the applicant is who he or she purports to be.
4. Intent to Depart Upon Termination of E-2 Status. The E-2 visa is not a full dual intent visa. This means that an applicant must have an unequivocal intent to return home when the E-2 status ends. However, the good news is that the filing (or approval) of a Form I-526 should not prevent the issuance of an E-2 visa, as long as intent to depart the U.S is clearly demonstrated.  The Field Adjudicators Manual (“FAM”) states:
   
   

An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time, nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon.  The alien may sell his or her residence and move all household effects to the U.S.  The alien’s expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien’s intent is to the contrary.  If there are such objective indications, inquiry is justified to assess the applicant’s true intent.  As discussed in 9 FAM 402.12-14, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf.  However, the alien might satisfy you that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.

5. Converting E-2 Enterprise into Direct EB-5 Investment. It is also possible, if done properly, that an E-2 applicant use the E-2 enterprise as the basis for a direct EB-5 investment, if new circumstances should arise resulting in U.S. permanent residency becoming an objective.  For more information on this possibility, read our blog “7 Things to Know About Converting an E-2 Visa to an EB-5 Green Card”.

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