E-2 Visa to Green Card: The Routes Open to Treaty Investors

Each route is a separate immigrant petition, filed by you, your company, an employer or a relative, and judged on its own standard.

Of the four routes that can use the E-2 business, the EB-5 builds on it most directly. The EB-5 is the immigrant investor green card. An E-2 business can become the enterprise behind an EB-5 petition when its capital reaches the EB-5 minimum and it creates ten full-time jobs for qualifying US workers. The E-2 has no fixed investment amount, so an E-2 company that started smaller has to grow into both.

For petitions filed on or after March 15, 2022, the EB-5 minimum investment is $1,050,000, or $800,000 in a targeted employment area. A targeted employment area is a rural area or an area of high unemployment. USCIS adjusts both figures for inflation for petitions filed on or after January 1, 2027.

The capital has to be at risk in the business. Its lawful source is traced again under the EB-5 rules, even when the same money was traced for the E-2.

Only qualifying employees count toward the ten jobs. A qualifying employee is a US citizen, a permanent resident or another immigrant authorized to work. 8 CFR 204.6(e) leaves out the investor, the investor’s spouse and children, and any nonimmigrant. Staff working on E visas, including employees the business brought in on E-2 status, do not count toward the ten.

A direct investment in your own business is filed on Form I-526. When a visa number is available on filing, the adjustment of status application can go in at the same time under INA 245(n). Approval gives two years of conditional residence, and Form I-829 removes the conditions once the investment and the jobs are shown to be in place.

Where the EB-5 asks the business to grow, the EB-1C looks at who owns it. The EB-1C is the green card for managers and executives of multinational companies, and it needs no labor certification. It fits an E-2 investor only when the US company belongs to the same group as a company abroad where you worked as a manager or executive.

For someone already in the United States, 8 CFR 204.5(j)(3) sets three conditions. In the three years before you entered as a nonimmigrant, you worked for the company abroad for at least one year as a manager or executive. The US company is that same employer, or a subsidiary or affiliate of it. And the US company has been doing business for at least one year.

The three-year look-back is counted back from your entry as a nonimmigrant, not from the filing date. Years spent running the US company do not use up the qualifying year abroad, as long as you keep working for the same group.

A standalone E-2 startup has no company abroad, so it cannot reach the EB-1C however much it grows. Where a company abroad does exist, the US company files Form I-140 for you, even when you own it. The US role has to be managerial or executive in the regulation’s sense, meaning you direct the business or a function through other staff, whatever title you hold.

An investor with no company abroad, and no plan to reach the EB-5 minimum, can build a case on a personal record instead. The EB-2 national interest waiver is a green card for people with an advanced degree or exceptional ability whose work benefits the United States. It lets an E-2 investor file without an employer or a labor certification. You file Form I-140 yourself, and USCIS judges the endeavor rather than the size of the business.

USCIS applies three tests. The endeavor has substantial merit and national importance. You are well positioned to advance it. And on balance, the United States benefits from waiving the job offer.

The USCIS Policy Manual guidance for entrepreneurs says that “broad assertions regarding general benefits to the economy and potential to create jobs” will not establish eligibility. The importance of an industry also does not make one new business in it nationally important.

The degree has to fit the endeavor as well. The Policy Manual gives the example of a person with an engineering doctorate who opens a bakery. The occupation behind the endeavor does not usually require a bachelor’s degree, so the degree may not count. A restaurant or retail E-2 business rarely supports an advanced-degree NIW on its own; a technology, research or specialist-services company is closer to the fit.

The E-2 record helps most with the second test. Revenue, hires, signed contracts and the capital already invested all show that you are well positioned to advance the endeavor you describe.

A founder whose work has drawn national or international attention can skip the employer and the degree question altogether. The EB-1A is the green card for people with extraordinary ability, and you file Form I-140 for it yourself, with no job offer and no labor certification.

Under 8 CFR 204.5(h)(3), you show sustained national or international acclaim through a major international award or at least three of ten listed criteria. USCIS then weighs the whole record to decide whether you are among the small percentage at the top of your field.

A successful E-2 company does not qualify you on its own. It counts only as evidence of your own standing, and four criteria are where a founder’s record usually fits:

Employer sponsorship is the first route that does not depend on the E-2 business. PERM is the labor certification an employer obtains before filing for an EB-2 or EB-3 green card. When another employer sponsors you, the process runs as it would for any worker. The employer tests the US labor market, the Department of Labor certifies the job, and the employer then files Form I-140.

It gets harder when the employer is your own E-2 company. Under 20 CFR 656.17(l), a closely held company in which the worker has an ownership interest must show that the job is a bona fide opening available to US workers. The company produces its formation documents and a list of its officers and shareholders with their relationship to you. It also shows the investment each of them made and names the people who control hiring for the position.

An investor who owns and runs the company is usually the person who would decide whether to hire a US applicant instead. The rule looks at that conflict, and a small company run by its owner has little evidence to set against it. PERM cases then wait for a visa number, and the wait depends on the category and on the country of birth.

Whichever route you take, each green card filing meets the E-2 rule on intent. The E-2 is not a dual-intent visa. INA 214(b) presumes that every visa applicant intends to immigrate, and it exempts H-1B, L and V applicants from that presumption but not E applicants.

An E-2 holder answers the presumption with a stated intent to depart when E-2 status ends. Officers check that intent again at each extension, each visa renewal and each entry. A green card filing puts the opposite plan on record, so the order and timing of the filings matter.

Your green card petition also carries your family. Your spouse and unmarried children under 21 join an employment-based green card case as derivatives, with no petition of their own. Each files a Form I-485 inside the United States, or goes through consular processing, on the strength of your approved petition.

A child can reach 21 while the case runs. E-2 dependent status ends at 21, and a child who reaches that age has to move to another status, often F-1, to stay.

For the green card, the Child Status Protection Act can keep a derivative classified as a child after the 21st birthday. It subtracts the time the immigrant petition was pending from the child’s age on the date a visa becomes available. The child must stay unmarried.

If a child is approaching 21, work out the child’s CSPA age before you file the immigrant petition.