E2 to an EB5 – There must be an infusion of Capital, not just retention of profits
Provided an E2 investor meets the requirements for an EB5, under the right circumstances an E2 investment and job creation may be applied to an EB5 green card. As Kenkhuis v. INS holds, an EB5 investment “requires an infusion of new capital, not merely a retention of profits of the enterprise”. Kenkhuis v. INS no.3. OI-CV-2224-N (N.D. Tex. Mar 7, 2003). If an investor is going to pursue an E2 with an EB5 as the ultimate goal, its important to plan accordingly and to seek the assistance of an experienced immigration lawyer and business advisor/accountant. It would not be pleasant to be successful in the E2 business, invest $1m one way or another, create 10 US full time jobs, and then find out that the source of funds is not sufficient for EB5 purposes.
L1 or EB5 For Investors From India or China
Investors from India, China, and other non-treaty countries are faced with the decision, go for an EB5 Investor Green Card or consider an L1 visa and subsequently and EB1C (International Manager or Executive Green Card). Each case is unique.
Generally speaking L1 cases for new and/or small US businesses are scrutinized more than larger established entities in the U.S. (this is not all cases but just a general proposition to consider). Moreover, does the investor want to start off large in the US, if so, then perhaps an EB5 is the correct strategy. Remember, the EB5 process requires an initial I-526 petition for conditional residency. Once the I-526 petition and Immigrant Visa are approved the investor may enter into the US as a conditional resident. The investor must then create 10 full time US jobs within 2 years (some cases are given 2 1/2 years) and a permanent green card can be obtained through the filing of an I-829 petition and adjustment of status application.
An EB5 case (from date of filing the I-526 petition) is looking at a minimum of 2 years, but in most cases at least 3.5 years from date of filing the I-526 petition (taking into account processing times). The other option is to pursue an L1, which in some cases can be obtained in approximately 2 to 8 weeks with premium processing. If its a new entity in the U.S. an L1 will be issued for 1 year, in which the investor will want to file for a renewal after 1 year. The investor in many cases may want to wait until the L1 renewal is approved before filing the EB1(c) Green Card. However, each case has a unique set of facts and there are various strategies. As mentioned above, its important to work with an experienced immigration lawyer and business advisor/account/lawyer, or call 773-687-0549 or contact Cipolla Law Group online for a consultation.