How an E-2 visa can be converted to a “Green Card,” like the L-1A visa

How an E-2 visa can be converted to a “Green Card,” like the L-1A visa

by Fernando M. Socol, Esq.

As a practicing immigration attorney in Miami, Florida for nearly 20 years, the most frequent “rumor” I hear is that “the E-2 visa can never be converted to a Green Card (Legal Permanent Residency).” Although the E-2 was not created with the immigrant intent, it can be converted, due to changes in circumstances. When an investor comes to the United States under an E-2 non-immigrant visa, the initial intent is to stay for the initially approved period, which can be further extended. However, if within a certain period, it is confirmed that the initial investment has been successful and became a solid venture, with several employees and contributing to economy, there is no impediment for the submission of an immigrant petition provided the company can show evidence of qualification with a company abroad. A Visa E-2 is usually granted for 5 years, except for some notable exceptions such as Mexico (1 year).

What is the L-1 Visa?

The L-1 visa has the “Dual Intent” factor, which makes it attractive from the beginning. It is, however, a gigantic challenge to obtain an Approval due to a variety of detailed requirements by USCIS (United States Citizenship and Immigration Service), which are rightfully designed to be tough on companies and individuals committing fraud by lying to USCIS and falsifying evidence. Of course I agree that those companies and individuals that commit immigration fraud in our country, or lie to USCIS, should be punished to the fullest extent of the law. The problem is that innocent and productive companies get caught up in this overbroad investigative red-tape and regulation, that L-1 visa are being denied at an alarming rate, and most often the victims are innocent and highly-productive companies and individuals that really do create US Jobs for Americans.

Depending on the factors presented, an L-1A can be approved for 1 year (if it is a start-up US organization); 2 or 3 years (if it is a US organization established for an excess of 1 year). The L-1A, can be used for up to seven years. Evidently, prior to the 7 year period, the individuals and companies who qualify, will apply for the immigrant benefits.

So more frequently than imagined, a client, under the right circumstances, may be eligible for both the L-1 and E-2 visas, by virtue of having “invested” in the US.

What is the difference between the E-2 and L-1 visas?

What differentiates such visas is that the L-1 was created for the purposed of bringing executives and/or managers who have worked for at least one (1) year in the preceding three (3) years, in an executive/managerial position for a company abroad, by either starting up a company in the US, or undertake an executive/managerial position in a company already affiliated to a foreign company. The E-2 was created for an individual to “invest” in the United States and direct his/her investment accordingly. However, nothing will preclude this individual to apply for an immigrant petition, if his or her investment is part of a foreign company or a foreign conglomerate group, for which he/she worked prior to coming to the United States in the E-2 investor visa.

This is where an experienced and successful immigration attorney is critical. The legal analysis will help you decide the Pros and Cons of each visa, and analyze what the ultimate goal of key issues of each client is and how to strategically embrace such goals and objectives to attain successful results.  Here at “Fernando Socol, P.A.” we can analyze a client’s particular needs and qualities, and recommend the best course of action for the client, not for the attorney. Often, my legal advice is contrary to my personal interests, because my personal goal is to work with “Ethics” and “Do The Right Thing for the Client.”

Multinational Executives and Managers Explained

Companies that have been established in the United States for at least one year and that are established “internationally,” meaning “in at least one other country,” may sponsor certain Managers and Executives for Legal Permanent Residence (otherwise known as “Green Cards”), without first obtaining a labor certification for the position. This is how an L-1 visa holder typically moves to their Green Card, through this type of petition.

However, contrary to overwhelming and near-unanimous popular belief, even among seasoned immigration attorneys, the L-1 visa is not the only visa category eligible for Multinational Manager or Executive.

In fact, even an H-1B or E-2 visa holder, under certain conditions, can file for the exact same “Green Card” as the L-1 visa. How, you ask?

To prove eligibility under the Multinational Manager and Executive category, the U.S. employer must file Form I-140 with U.S. Citizenship & Immigration Services (USCIS), with evidence that:

1)         The sponsored employee, under L-1, H-1B or E-2, worked for the company as a manager or executive outside the United States for at least one year during the three years preceding the filing of the petition. If the employee is already in the United States in valid nonimmigrant status, either L-1, H-1B or E-2, the petitioning employer must prove that the employee worked with the company abroad as a manager or executive for a full year during the three years immediately before the employee’s entry to the United States in legal status. Once again, the visa is irrelevant, it is the conditions that must be met that really count at the time of filing.

2)         In addition, the employer must show that a qualifying relationship existed between the employee’s foreign employer and the U.S. employer while the employee worked abroad. A “Qualifying Relationship” is one in which there is either an affiliate or subsidiary relationship between the two entities.

3)         Finally, the employer must show that the employee has been offered a Managerial or Executive position with the company in the United States Legal Requirements for the Green Card

To prove that an employee has worked or will work in a managerial capacity, an employer must show that the employee:

  • Manages the organization, or a department, subdivision, function, or component of the organization;
  • Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
  • If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
  • Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.

To prove executive duties, the employer must prove that the employee has performed or will perform the following duties:

  • Directs the management of the organization or a major component or function of the organization;
  • Establishes the goals and policies of the organization, component, or function;
  • Exercises wide latitude in discretionary decision making; and
  • Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

As you might have noticed, the distinction between Managerial and Executive duties under the immigration laws, is minimal, however, crucial and essential to the successful preparation of the case. Even seasoned immigration practitioners have a difficult time discerning between the two.

“Qualifying Relationship” Among Both Companies

During the period that the employee worked for the company abroad, the foreign employer and the petitioning U.S. entity must have maintained a qualifying corporate relationship such that the transfer of the employee to the United States may be considered a transfer within a single company.

The entities among which the employee transfers must have common ownership and control to qualify for use of the multinational manager or executive immigrant visa category. To prove this, the petitioning U.S. employer must show that it is the same company as the overseas employer or that it is the parent, subsidiary, or affiliate of the overseas employer.

So how exactly can the E-2 also qualify as Multinational Manager or Executive?

First, the E-2 investor must be at least a 50% owner of a foreign company in which they “direct” the management or a certain number of professional employees. The structure of the foreign company will be analyzed, along with the owner’s professional position.  The investor must have worked for the foreign company as a manager or executive outside the United States for at least one year during the three years preceding the filing of the petition and have majority control.

Second, the E-2 investor must make a “substantial investment” in the U.S. and obtain his/her E-2 visa.

Third, the foreign company must continue to operate the entire time, just like the L-1 is required to do.

Fourth, The E-2 investor must now expand the U.S. business to include at least 5 or 6 full-time employees, preferably “professionals,” but not all employees are required to be professionals. *Remember that the L-1 visa typically has only One Year to create the 5 or 6 jobs, while the E-2 typically has 5 years.

Fifth, once the E-2 business has grown sufficiently to warrant the E-2 investor to now be also be considered a Manager or Executive, in addition to merely an “investor,” the E-2 visa now qualifies as both an investor AND a Multinational Manger or Executive.  The E-2 visa can file directly for an I-140, just like the L-1 visa, without the need to change the E-2 visa first to an L-1 visa.  That is not necessary. The E-2 would go directly to the I-140 and click the box that says “Multinational Manager or Executive.” Notice that the I-140 Form does not have a category for an “L-1 visa.” The I-140 simply states “Multinational Manager or Executive.”

Advantages of E-2 over the L-1 visa

Now that we have established that the possibility of obtaining a “Green Card” for an L-1 visa or an E-2 visa does NOT depend on the type of visa, but instead depends wholly on the “corporate structures” of both the US Company and the foreign company, the only things left to analyze are the advantages of the E-2 visa over the L-1 visa. There are several:

  1. Five years vs. one year or two years.
  2. The Spouse can still work anywhere, just like the L-2 spouse can
  3. Unlimited Extensions. The L-1 visa is limited to 7 years, while the E-2 extensions are unlimited so long as the business continues and remains profitable.
  4. The L-1 visa requires much more creation of employment, and that creation must be during the first year, usually. While the E-2 is much more flexible, with no such strict requirements on initial employment-creation
  5. The L-1 is hard, and denials are frequent and unpredictable. While the E-2 is much more “stable” and predictable with a much higher rate of approval.
  6. There are other advantages. Please speak to an experienced immigration lawyer to analyze your particular situation.

Conclusion

Don’t be fooled by the wrong advice of inexperienced immigration attorneys, or what your “friends” might be saying about the E-2 visa.  At times it is a better choice if a client qualifies for both. The important note to take away from this article is that the E-2 visa, under the right circumstances, works in similar ways as the L-1 visa for the Green Card.

The type of visa is not relevant considering the right circumstances. It’s the Corporate Structure that is most important (number of employees in both companies, common ownership, etc), and meeting the criteria for Multinational Manager or Executive. If an E-2 visa holder meets the criteria, he or she will have the same chance as an L-1 to be approved for Permanent Residency (Green Card).

About the Author:

Fernando M. Socol was born in Buenos Aires Argentina in 1967 and has been living in Miami for 46 years. Mr. Socol is the Managing Partner of the law firm, “FERNANDO SOCOL, P.A.” based in Miami, Florida. Mr. Socol focuses his practice on employment-based immigration, investor visas, and EB-5 cases. With over 19 years of experience as an attorney, Mr. Socol is also fluent in Spanish and English, which allows him to accurately explain the complex U.S. immigration system, to Spanish speaking immigrants. Mr. Socol has experience working at large law firms and is consistently invited as a Guest Speaker on immigration law issues, internationally. Mr. Socol is a Member of the Florida Bar, the American Bar Association, and a Member of the American Immigration Lawyer’s Association (AILA) since the year 2000.

To contact Mr. Socol: 

Web: WWW.SOCOLLAW.COM  Email: fsocol@socollaw.com  Office: (786) 272-7100

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