February - 2014 - issue > Attorney Insights

Whether an E2 or L1 Capital Investment May Be Applied to an EB5 Green Card

Gerald Cipolla
Monday, February 10, 2014
Gerald Cipolla
EB5 Defined Generally In The Direct Investment Context
The Immigration and Nationality Act provides that an immigrant visa shall be made available when a foreign national invests or is in the process of investing capital, currently in the amount of $500,000 (for rural or high unemployment areas) or $1,000,000 into a new commercial enterprise and creates 10 full time jobs for the U.S. citizens or lawful permanent resident holders (other than the investor's spouse or children). There are numerous issues and factors that must be carefully examined for an EB5. But for purposes of this article we are narrowly examining whether an investor that invests in a business and receives an E2 or L1 visa and subsequently creates 10 full time jobs may apply the investment and job creation to an EB5 Green Card.

E2 Visa Defined

8 CFR provides that a foreign national of a Treaty Country may obtain E2 status when the investor:"(i) Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the U.S., as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; (ii) Is seeking entry solely to develop and direct the enterprise; and (iii) Intends to depart the U.S. upon the expiration or termination of treaty investor (E-2) status."
It's important to point out that unfortunately foreign nationals of India and China are not eligible for an E2 visa, which is a shame as there is very strong demand from foreign investors in these countries that would be beneficial for the US economy. Nevertheless, investors of India and China generally inquire into an L1 visa or an EB5 green card mentioned above.

L1 Visa Defined

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