The E2 visa is a non-immigrant visa meaning that the visa holder must not maintain 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). Since the immigrant intents of an E2 visa holder and a green card holder are divergent, one would not necessarily expect to be able to apply for a green card while in the United States on an E2 visa. Despite this fact, the reality is that E2 investors have several potential indirect pathways to a green card and eventually citizenship available. Below we will address each of these alternatives along with the risks and opportunities inherent to the E2 Visa Holder.
Immigration Intent Issue Presented by E2 Visa Immigrant Investor Status
One of the chief problems presented by one’s status as a nonimmigrant E2 visa holder is the lack of dual intent. This issue arises because of the fundamental tension between a temporary visa that is not intended for immigration purposes (despite the fact the visa itself is issued for up to five years and allows for two-year entries) and one’s desire to live permanently in the United States. The regulations require that E2 visa holders must not maintain intent to remain permanently in the United States. Instead, an E2 Visa holder must have an intent to leave the U.S. once their business is concluded. Of course, due to the fact that many E2 Visa holders renew their Visas and continue to operate their business for years or even decades, this intent conundrum becomes a bit of a technical legal absurdity that is difficult to navigate.
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. The United States Citizenship and Immigration Services (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. While individuals that are already within the borders of the U.S., can typically apply for their green card directly through an adjustment of status, immigration regulations specifically prohibit this visa type from the adjustment of stats process. The reasons for this prohibition are related to the reason for the program: to encourage and facilitate trade with trade-treaty nations. Thus the trade-treaty investor is granted certain legal rights under the treaty that authorizes his or her E2 status.
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An EB5 Visa May Offer an Alternate Path to a Green Card
E2 visa holders that do not have family members or employment-based sponsorship opportunities may wonder if they are permitted to sponsor themselves for citizenship. Unfortunately U.S. immigration law prohibits a prospective immigrant who is also an employer from sponsoring himself or herself. While it can be difficult or impossible to prove that an E2 investor can qualify for the narrow exception to this rule, the EB5 Immigrant Investor Program may offer an alternative pathway to citizenship. Individuals who have already availed themselves of the benefits provided by the E2 program may have the requisite resources to obtain citizenship through a qualifying investment into a U.S. business that creates a certain number of full-time jobs. An experienced immigration attorney can provide more information and options about pathways to citizenship for an E2 visa holder.
Strategic & Trusted Immigration Guidance
The experienced immigration attorneys of Colombo & Hurd approach each issue with the utmost of care. We work to help immigrants and immigrant investors meet their U.S. immigration goals. To schedule an initial consultation call us at 800-549-5523 or contact us online.