After having invested in a U.S. venture and been allowed to enter the U.S. to oversee your investment, you’re perhaps now thinking that you want to make your U.S. stay more permanent. Under U.S. immigration laws, if you are an E-2 treaty investor (under 8 U.S.C. 1101(a)(15)(E)), you can apply for permanent residence through one of several channels. However, there are a few potential glitches of which you should be aware.
Broadly speaking, the process of acquiring U.S. permanent residence and a green card can be broken down into two major steps.
First, a qualifying person or organization files an immigrant petition with U.S. Citizenship and Immigration Services (USCIS) on your behalf. Second, once USCIS approves that petition, you can apply for permanent residence either while in the U.S. or at a U.S. embassy or consulate, provided there is an available immigrant visa number for you. (Waiting lists exist in some categories.)
This site has much detailed information on this process. For purposes of obtaining permanent residence while in E-2 status, you should know that either qualifying relatives (family-based immigration) or an employer (employment-based immigration) can file a petition for you.
You should also be aware of the concept of "dual intent." E-2 status, like other employment-authorized nonimmigrant statuses, means that you have been allowed to enter the U.S. on a temporary basis. The law requires that, as an E-2 nonimmigrant, you must return to your country of origin after your work is complete, and you must not intend to stay permanently.
However, the practice has been to extend to E-2 nonimmigrants the concept of dual intent, meaning that you can simultaneously intend to leave after your E-2 work in the U.S. complete and intend to seek permanent residence and stay in the United States. Dual intent is a strange legal concept, but it is important that you be aware of its impact.
One of the consequences of dual intent for E-2 nonimmigrants is that they face a more difficult road in applying for permanent residence once a petition has been approved than some other applicants.
Most people who have an approved immigrant petition and an available immigrant visa number can acquire their green card by either applying for an immigrant visa stamp at a U.S. embassy or consulate or, if already in the U.S., applying directly for a green card through a process called “adjustment of status.” Adjustment of status is more convenient for many applicants, because you don't have to leave the U.S. during the process, you can have an attorney represent you at the interview, and you have greater appeal rights after a denial.
However, immigration regulations specifically prohibit E-2 nonimmigrants from applying through adjustment of status--or if they do so, they must jump through an additional hoop.
The E-2 treaty trader program was created in part to facilitate trade between the U.S. and the various countries with which the U.S. has trade agreements. As a consequence, E-2 status gives E-2 nonimmigrants certain legal rights that come from the trade agreement. If you wish to adjust status from E-2 to permanent residence while in the U.S., you must be willing to waive, or give up, these rights under the trade agreement. To do this, you will need to file Form I-508, Waiver of Rights, Privileges, Exemptions and Immunities, along with your adjustment application.
Waiving your rights under E-2 status is not a mere formality. Certain things, including tax liability, benefits under the particular trade agreement between your home country and the U.S., and other important legal rights can be affected should you waive them. Contact an immigration attorney if you have questions.
In any case, should you decide to apply for an immigrant visa stamp at a consulate and enter the U.S. as a permanent resident instead of entering as an E-2 nonimmigrant, you will also no longer benefit from the particular legal rights of the E-2 treaty program.
If you have a U.S. citizen or permanent resident relative in the U.S., that relative might be able to sponsor you for permanent residence through the family-based process. E-2 nonimmigrants can, with the caveat regarding adjustment of status discussed above, go through this process.
Thanks to the allowance of dual intent for E-2 applicants, if a relative files an immigrant visa petition for you, you need not worry about losing your E-2 status.
As an E-2 nonimmigrant, you may also be sponsored by a U.S. employer for permanent residence. Dual intent doctrine will allow you to remain in the U.S. as an E-2 while your prospective employer goes through the petition process.
As discussed in more detail in our guides, employment-based immigration is a lengthy process. Depending on the type of employment, the education and experience required by the position, and other factors, your proposed employer might have to complete a process called “Labor Certification” before it can file a petition for you.
Labor Certification is a “market test” supervised by the U.S. Department of Labor. This process requires that your proposed employer carry out and document a series of job recruiting efforts for your proposed position. This is to ensure that no U.S. citizens or permanent residents already in the U.S. can satisfactorily fulfill the job.
This recruitment period can take around three months to complete, and the application your employer will need to file with the Department of Labor can take an additional three months or more to be approved. There also is a “prevailing wage” step, which can add several more months to the process, either before or while the employer is recruiting. Because E-2 status authorizes you for stays of up to two years in the U.S., you should carefully consider the timing of your employer’s Labor Certification efforts.
Other types of employment-based immigrant visa petitions include the EB-1 classification (for “Aliens of Extraordinary Ability” or “Multinational Managers or Executives”) and the National Interest Waiver, for certain foreign nationals who can demonstrate that their abilities, knowledge, or skills are of high interest to the United States. While these categories do not require the Labor Certification process, their eligibility requirements are extremely demanding. Contact an immigration attorney if you believe you might qualify for the EB-1 or NIW classifications.
Immigration law prohibits an intending immigrant who is also an employer from petitioning for him- or herself as an employment-based immigrant petition beneficiary.
As an E-2 treaty investor, you have been allowed to enter the U.S. to direct and develop an investment in a U.S. business or other venture. That business or venture may seek an employment-based immigrant petition for you, provided that it is clear that you are not simultaneously the petitioner acting through that business or venture.
Because E-2 investors are often also the owners or directors of their U.S. business or venture, this distinction can be difficult to prove. Consult an immigration attorney if your case fits this pattern.
As an E-2 investor, you might have access to significant capital, which you might want to invest in the United States. The EB-5 immigrant category confers permanent residence (a “green card”) to foreign nationals who invest a significant amount, from US $500,000 to US $1,000,000, in a U.S. business or venture that will employ at least ten U.S. workers (citizens, lawful permanent residents, refugees, asylees) on a full-time basis. The required amount depends on the unemployment rate for the particular geographic area in which the business or venture exists.
Upon someone's filing a petition in this category (Form I-526), USCIS carefully scrutinizes any investments made under the EB-5 program to ensure compliance with the requirements and to eliminate fraud.
While the requirements for the EB-5 category might seem straightforward, compliance can be complex. Consult an immigration attorney if you wish to seek permanent residence under the EB-5 program.