How can an E2 Visa Holder Apply for a Green Card? [2020 Update with New Options]
The E2 visa is a non-immigrant visa which prohibits the visa holder from having an intent to immigrate to the United States at the time the Visa is issued or used for entry. Accordingly, the E2 does not provide an individual with a direct pathway to permanent residency (a green card). However, after entry, the E-2 Visa holder is eligible to explore and proceed with options for permanent residency provided she does not violate her E-2 status in the process.
Over the last 15 years we have assisted a number of E-2 visa holders transition from the temporary nature of E-2 Visa status to lawful permanent residency. The reality is that E2 investors have several indirect pathways to a green card and eventually citizenship available to them depending on their circumstances. Below we will address each of these alternatives along with the risks and opportunities inherent to each including one very successful option that has become more and more popular for our clients over the last three years.
>> Related Content: How Long Does It Take To Obtain An E2 Visa
Option #1: Employer Sponsorship Through the PERM Process.
One of the most common ways to obtain a Green Card for an E-2 Visa holder is through a job offer from a U.S.-based employer either for the investor directly or for his spouse. An Employer can viably sponsor an E-2 Visa holder in either the second or third preference categories.The second preference (EB-2) category includes applicants who are either have an advanced degrees or their equivalent or foreign nationals with exceptional ability in the sciences, art or business. The third preference category (EB-3) includes applicants who have a bachelor’s degree or who are skilled workers.
After having an employer agree to sponsor the E-2 Visa holder, the first step in the process is the PERM/Labor Certification process with the U.S. Department of Labor (DOL). This stage entails multiple steps including submission of a “prevailing wage determination” request to the DOL. Also required is a recruiting period where the employer tests the U.S. labor market by advertising the position offered to make it available to U.S. workers.
After the last recruitment effort ends there is a 30-day waiting period required before the employer can continue the process. This is so that the employer can continue to receive and consider applications for the advertised position. Finally, the Employer submits a request for the position to be certified to the DOL.
All told, the PERM process is currently taking 8-11 months for completion under the current DOL time frames. Once completed, the Employer can begin the process with USCIS by filing the I-140 Immigrant Petition to demonstrate the foreign national is qualified to fill the job position and that the employer has the financial ability to pay the proffered wage to the foreign national. Altogether, the complete time frame for certification of the PERM plus USCIS processing of the I-140 in 2020 is taking at least 18-24 months on average.
As of June 2020, the EB-2 category remains current for most countries under the visa bulletin so applicants can file the I-485 application for adjustment of status to lawful permanent residence concurrently with the I-140 Petition. However, the EB-3 category has a backlog of almost three years until the green card may be available for applicants.
Overall, the option for Employer Sponsorship for E-2 Visa holders is certainly an option to consider; however, it can frequently difficult for even qualified applicants to find an employer willing to invest in the sponsorship process. The long time frames associated with this undertaking also and the fact that the DOL has recently become more aggressive in denying certification are also downsides.
Option #2: Permanent Residence through the National Interest Waiver
For E-2 Visa Holders who are highly skilled or who hold advanced degrees, one of the more effective methods of obtaining a green card since 2017 is a process known as the EB-2 National Interest Waiver. While this option had been around in a sense for many years the heightened criteria required to prove eligibility made it exceptionally difficult to qualify. However, in late 2016 the U.S. Supreme Court substantially lowered the threshold for eligibility, making it much easier for foreign nationals to qualify.
Unlike the process described in option #1 above, E-2 Visa holders can obtain residency (1) without the sponsorship of an employer and (2) without having to undergo the difficult and time consuming PERM process. Instead, under the National Interest Waiver, the applicant can request that the Employer Sponsorship and Labor Certification requirements be waived because it is in the best interests of the United States to do so.
Under the standard established by the US Supreme Court, an applicant must demonstrate the following three criteria in order to be eligible for the Green Card through a National Interest waiver: (1) The foreign national’s proposed endeavor has both substantial merit and national importance; (2) The foreign national is well-positioned to advance the proposed endeavor; and (3) On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category.
What we have found with our E-2 clients petitioning for the National Interest Waiver is that many of them have already taken substantial steps toward eligibility with the development of their E-2 Business. Its notable that in evaluating eligibility in particular to determine whether an applicant is well-positioned to advance the proposed endeavor, the US Immigration Service will look to the applicants education, skills, knowledge and record of success along with her model or plan for future activities, progress towards achieving the proposed endeavor as well as the interest of potential customers or users among other factors.
In short, we find that frequently the success of the the E-2 Entrepreneurs business activities in the US lays out a road map of how they will be even more successful in the future and putting together a strong National Interest Waiver residency application can be fruitful. For more information on the National Interest Waiver you can reference our page on that subject here.
Option #3: Family Based Application for Residency
Another frequent option to obtain a green card is sponsorship by a family member. For spouses or parents of US Citizens (over 21) your relative may sponsor you for immediate green card processing. For other close family relationships you also may be able obtain a green card after your relatives file a petition on your behalf and the visa bulletin indicates that your visa is current. However, there can be far longer waits for this type of process as, for example, the current wait for a US Citizen filing for their sibling is currently well over 12 years in wait time and substantially longer for some countries.
Option #4: Utilizing the EB-5 Visa as a Path to Residency
The EB-5 Immigrant Investor Program has long offered an alternative pathway to residency. Individuals who have already availed themselves of the benefits provided by the E2 program may have the requisite resources to obtain residency through a qualifying investment into their existing business through a direct investment or through a regional center project through an indirect investment. Although the longstanding investment requirement for a direct investment was an investment of $500,000 and creation of 10 jobs if the business was located in a targeted employment area, USCIS fundamentally changed the regulations effective November 2019 upping those requirements substantially.
Specifically, the regulation raised the threshold from $500,000 to $900,000 for targeted employment areas (TEAs) and up to $1.8 million for all other investments. Further, under the new regulations, USCIS will now determine the validity of a TEA under stricter rules for geographic area, likely resulting in fewer TEA projects or more projects in truly rural areas. While the EB-5 Visa certainly remains an option for an E-2 Visa holder, the requirements have become more onerous for selecting this option.
The Process of Obtaining Permanent Residence in the U.S. for an E2 Visa Holder
Depending on the paths that are available, a qualifying relative or business may sponsor individuals who wish to apply for legal permanent resident status in the United States. For E2 nonimmigrant visa holders both employment-based and family-based immigration opportunities remain available despite the fact that an E2 does not give rise to a direct path to residency. USCIS will then review the submitted application. If approved, the individual can file for permanent resident status. Individuals that are outside of the United States can achieve legal permanent residency by petitioning for an immigrant visa stamp at a U.S consulate or embassy.