This article is based on a video originally recorded on Visa Franchise Youtube Channel.
This article is for those who are on the E-2 investor visa in the United States, or are thinking of investing in a small business to obtain an E-2 visa USA, or are curious to know what the potential paths are for obtaining a U.S. green card, also known as U.S. permanent residence. If you want to know how to change an E2 visa to green card, keep reading this article.
First, for Visa Franchise, we’ve had well over 600 clients, most of whom have chosen to invest in a franchise for their E-2 visa. The majority of our clients actually get the green card through their spouse.
Contents
How to Change Your E2 Visa to Green Card
If you’re the principal applicant investing in a small business, or your spouse has work authorization. I’m going to go through a couple different green card options so that spouses can change visa E2 to green card.
If your spouse has been working some years, even has a master’s degree, he or she might be eligible for the EB-2 green card. If they don’t have the necessary requirement to meet the EB-2 category, they might be eligible for the EB-3.
Unemployment is relatively low in states like Florida, around 5%, and there’s demand for labor. And it’s become much easier depending on the skillset of your spouse and where he or she is applying for work to be able to get one of these employment green card options by having the employer sponsor his or her green card.
It’s important with any of these options to consult with a U.S. license immigration attorney at Visa Franchise. We’re not attorneys; we just help on the business and franchise selection side.
However, there are options for your spouse to be sponsored for a green card through employment.
There are a few different ways for the E-2 visa investor to transition from E2 visa green card. One is the EB-1A, which is a special ability visa. There’s also the EB-2 NIW, National Interest Waiver.
The EB-2 NIW and the EB-1A are for professionals at the top of their field. They have extraordinary ability, and they don’t have to go through the process of testing the local labor market.
How to Get a Green Card
If you’ve been published, if you’re at the top of your field, talk to your U.S. immigration attorney. See if those options might be eligible for the green card. If you don’t meet the requirements for EB2 NIW or the EB-1A, you might want to consider your EB-5 visa.
As of September 2021, the investment amount for the EB-5 visa is $800,000. So there’s the potential that you start with the E-2, or you start with the EB-5 and you can get a green card based on the same investment that you did for the E-2 visa.
"Compared to the E-2, the source of funds is more stringent and important for the E-B5 and it really is important to show how you have spent or how you’re in the process of spending that $500,000 to create 10 full-time American jobs."
Those jobs are measured by basically employees working 35 hours a week or more, and the petition needs to stay the same or with slight variance. But if it’s a fast-food franchise where every three months, six months there’s turnover, that’s fine, but you can’t be taken away from that position. You still need to have 10, 11, 12 full-time positions that you have people on payroll for.
Those are just a few different options for getting a green card for those who are already on the E-2 visa or looking to apply for the E-2 visa.
I went through two ways that the spouse can get the green card through EB-2, EB-3 sponsorship from a company as well as the E-2 visa investor through EB-1A, EB-2 National Interest Waiver, or the direct EB-5 option.
Visa E2 to Green Card EB-3
EB-3
EB-3 is employment-based immigration. You can get your EB-3 green card in several conditions. First, if you are a skilled worker, then you need to demonstrate that you possess at least 2 years of job experience, education, or training that meets the job requirements specified on the labor certification. Specifically, relevant post-secondary education may be considered as training and you must be performing work for which qualified workers are not available in the United States.
Second, if you are a professional, you must demonstrate that you possess a U.S. baccalaureate or foreign equivalent degree and that a baccalaureate degree is a normal requirement for entry into the occupation. You must be performing work for which qualified workers are not available in the United States, education and experience may not be substituted for a baccalaureate degree, and you must meet any other requirements specified on the labor certification.
Finally, if you are an unskilled worker, you must demonstrate the ability to perform unskilled labor (requiring less than 2 years of training or experience), which is not of a temporary or seasonal nature. You must be performing work for which qualified workers are not available in the United States, and you must meet any other requirements specified on the labor certification.
If an EB-3 applicant’s I-140 petition is approved, his/her spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-34 (spouse of a “skilled worker” or “professional”) or EW-4 (spouse of an “other worker”), and E-35 (child of a “skilled worker” or “professional”) or EW-5 (child of an “other worker”).
EB-2
EB-2 is also an employment-based immigration. You can get EB-2 NIW in two different conditions. First, you can get an advanced degree, which means that the job you apply for must require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field).
You must meet any other requirements specified on the labor certification as applicable as of the priority date. To prove that you need the documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.
If a doctoral degree is customarily required, you must have a United States doctorate or foreign equivalent degree. Or you could also get the EB-2 through your exceptional abilities. For that, you must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” You must meet any requirements specified on the labor certification as applicable.
Academic record
Specifically, the criteria must include an official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, or other institution of learning related to your area of exceptional ability; letters from current or former employers documenting at least 10 years of full-time experience in your occupation; a license to practice your profession or certification for your profession or occupation; evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability; membership in a professional association(s); and recognition for your achievements and significant contributions to your industry or field by your peers, government entities, and professional or business organizations. Other comparable evidence of eligibility is also acceptable.
E-21 and E-22 immigrant status
Then, if an EB-2 applicant’s I-140 petition is approved, his or her spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.
Visa E2 to Green Card EB-5
USCIS administers the EB-5 Immigrant Investor Program, which was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a program first enacted as a pilot in 1992 and regularly reauthorized since then, investors may also qualify for EB-5 classification by investing through regional centers designated by USCIS based on proposals for promoting economic growth.
On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act as part of the Consolidated Appropriations Act, 2022 (Public Law 117-103), which created new requirements for the EB-5 immigrant visa category and the Regional Center Program. Immigrant visas are authorized under the Regional Center Program through Sep. 30, 2027. The EB-5 Reform and Integrity Act created new EB-5 immigrant visa set-asides for qualified immigrant investors. Each fiscal year, a certain percentage of EB-5 immigrant visas are available to qualified immigrants who invest in specific areas:
Any of these set-aside visas that go unused are held in the same set-aside category for one more fiscal year. After the second fiscal year, any remaining unused immigrant visas in these set-aside categories are released to the unreserved EB-5 immigrant visa numbers during the third fiscal year.
Area Invested In | EB-5 Immigrant Visas Set-Aside Each Fiscal Year |
---|---|
Rural Area | 20% |
High Unemployment Area | 10% |
Infrastructure Project | 2% |
All EB-5 Green Card Investors must invest in a new commercial enterprise that was established:
a– After Nov. 29, 1990; or
b– On or before Nov. 29, 1990, that was:
– Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
– Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.
A new commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:
- A sole proprietorship;
- Partnership (whether limited or general);
- Holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business);
- Joint venture;
- Corporation;
- Business trust;
- Limited liability company; or
- Other entity, which may be publicly or privately owned.
This definition does not include noncommercial activity, such as owning and operating a personal residence.
Job Creation Requirements
An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.
For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions. Up to 90% of the job creation requirement for regional center investors may be met using indirect jobs.
- Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
- Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
In the case of a troubled business, the EB-5 investor may rely on job maintenance.
- The investor must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.
Troubled Business
A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’s net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.
Qualifying Employee
A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any noncitizen in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.
Full-time Employment
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
A job-sharing arrangement where two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.
Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient.
Green Card by Investment Capital Requirements
Capital means cash and all real, personal, or mixed tangible assets owned and controlled by the immigrant investor. All capital will be valued at fair-market value in U.S. dollars.
The definition of capital does not include:
- Assets acquired, directly or indirectly, by unlawful means (such as criminal activities);
- Capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise;
- Capital invested with a guaranteed rate of return on the amount invested; or
- Capital invested that is subject to any agreement between the immigrant investor and the new commercial enterprise that provides the immigrant investor with a contractual right to repayment, except that the new commercial enterprise may have a buy-back option that may be exercised solely at the discretion of the new commercial enterprise.
Note: Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) in certain circumstances.
Minimum Investment Amounts by Filing Date and Investment Location
Petition Filing Date | Minium Investment Amount | Targeted Employment Area Investment Amount | High-Employment Area Investment Amount |
---|---|---|---|
Before 3/15/2022 | $1,000.000 | $500,000 | $1,000,000 |
On or After 3/15/2022 | $1,050,000 | $800,000 (includes infrastructure projects) | N/A |
Future adjustments will be tied to inflation using the change in the Consumer Price Index for All Urban Consumers (CPI-U) from March 15, 2022, to the date of adjustment. These adjustments will occur every five years, with the first such adjustment effective for petitions filed on or after Jan. 1, 2027.
A targeted employment area can be, at the time of investment, either:
a- Rural Area
A rural area is any area other than an area within a metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.
b- High-Unemployment Area
(Defined as at least 150% of the national average unemployment rate).
A high-unemployment area consists of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.
Regional center investors may choose to invest in a new commercial enterprise engaged in an infrastructure project. An infrastructure project is a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a federal, state, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project. After the second fiscal year, any remaining unused immigrant visas in these set-aside categories are released to the unreserved EB-5 immigrant visa numbers during the third fiscal year.