The Treaty Investor Visa – a Bridge to EB-5

The biggest issue presently in the U.S. EB-5 investment green card program is the long quota waiting list for Chinese national investors, who comprise over 85% of all investors in the EB-5 program.  Because the waiting list may exceed 4 to 5 years before the investor can immigrate to the U.S., investors and their representatives are seeking options to be able to enter the U.S. during the waiting period, possibly work in the U.S. and have their children be able to study in the U.S.  The B-1/B-2 visitor visa generally only allows the visa holder to spend up to 6 months per year in the U.S.  This is sufficient for some investors, but not for others.

One option being considered more frequently is the E-2 treaty investor visa.  This visa can generally be issued for 5 years and can be extended after 5 years if the investment business is still viable.  It allows the investor to oversee his business, the spouse of the investor to work anywhere he or she wishes and the child of the investor to attend any level of schooling, after which he can change to a student visa.

There is only one major problem with this visa option for Chinese investors.  The U.S. does not have a bilateral investment treaty with China that enables its nationals to obtain the E-2 treaty investor visa.  For this reason, some Chinese investors are seeking to buy U.S. citizenship in a country that has a bilateral investment treaty with the U.S.  One such example is Grenada, which has a citizenship by investment program that enables Chinese investors to obtain Grenadian citizenship, often within 3 months or less.  There is no residence requirement in Grenada.

Assuming the Chinese investor becomes a Grenadian citizen, he then needs to invest in a new or existing business in the U.S.  The business must be owned at least 50% by the investor or by another individual or corporate national of the treaty country.  Surprisingly, there is no exact amount of investment.  Rather, the amount of investment varies depending upon the type of business.  For example, a consulting company requires a far less substantial investment to be viable than would a manufacturing company.  The key is that the investor must show that the amount of investment is substantial enough to create a viable business of the type contemplated.  Employment of U.S. workers, while not required, is very helpful.

The E-2 visa application can be presented at the U.S. Consulate with jurisdiction over the treaty country, or at a U.S. Consulate in the foreign national’s country of citizenship or residence.  Technically, it can be presented at any U.S. Consulate around the world where the investor appears, although application at a consulate with no relationship to the investor is often an undesirable option.

While the E-2 visa option is an answer for some investors, the long term viability of the EB-5 program is dependent upon passage of legislation by the U.S. Congress that would address the shortage of visa numbers provided for EB-5 immigrants.  Various proposals are presently being considered and will hopefully be enacted as part of comprehensive EB-5 legislation in 2016 or 2017.

Ronald Klasko, Klasko Immigration Law Partners, LLP

Date Submitted: 24 March 2016