Applying for a Green Card With an E-2 Visa

After the good fortune of being able to invest in a U.S. venture and being allowed to enter the U.S. to oversee your investment, you’re now thinking that you want to make your U.S. stay more permanent. Under the immigration laws, if you are an E-2 treaty investor, you can apply for permanent residence through several channels. However, there are a few potential glitches of which you should be aware.

The general process to acquire 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 visa 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 several detailed guides 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 law also says that E-2 nonimmigrants can have 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.

Not All E-2 Applicants Can Use the Adjustment of Status Procedure

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. In general, 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, can have an attorney represent you at the interview, and have greater appeal rights.

However, immigration regulations specifically prohibit E-2 nonimmigrants from applying through adjustment of status -- at least, not without jumping 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 on your specific E-2 status.

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 may 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 may 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. 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 may 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 very difficult to prove. Consult an immigration attorney if your case falls in this pattern.

As an E-2 investor, you may have access to significant capital which you may want to invest in the United States. The EB-5 immigrant category confers permanent residence and 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. citizens or lawful permanent residents or immigrants 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.

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 may seem straightforward, compliance can be complex. Consult an immigration attorney if you wish to seek permanent residence under the EB-5 program.


Best Visa Card for Frequent Travelers

Venture visa card

Best Visa Card for Frequent Travelers

So for 15 years we’ve had the same Visa. It does nothing for us (except access to credit, but that’s so old school). No points, no cash back, not even a Christmas card from the bank.

I’ve been researching a new card for the last year, I’ve piled up every offer, every brochure, every mailer. I had been leaning toward the Chase Sapphire (not just because it looks cool, but that was part of it). Mr. LTM was the one who announced we should get the Capital One Venture Card. Apparently he does his research too.

Mine is going to look way cooler than this

What I didn’t tell him was that I planned to get the card on my own. I think it’s important for women to have their own credit line and I really don’t like explaining the cost of a good pair of shoes.

It’s been a long time since I’ve applied for a credit card. It seems it used to involve a lot of paperwork, waiting for approval, etc. I applied for my Venture Card yesterday while eating breakfast. I was approved before I had finished my coffee.

When I went online it gave me the option of seeing how many miles I would earn based on my current monthly Visa bill. By next year, we should be able to take our Christmas trip on miles. Of course I’ll have to do my part and shop with the Visa card, but I’m a team player, I’m willing to do the work.

Why I chose the Venture card for travel (and shoe shopping):

  • I get double miles on every purchase.
  • No foreign transaction fees. I travel to Haiti several times a year as well as Europe, this is a very appealing benefit.
  • Lost luggage reimbursement. I haven’t lost luggage yet, but I know it’s only a matter of time.
  • Lots of insurance (rental car, travel accident, etc) I’m a sucker for insurance, you would be too if you traveled with my band of fools.
  • The first year fee is on them, so if I don’t like it, I’m out.

Hey Capital One – feel free to use this image

I’m not sure if the interest rate is appealing, it seemed high but I pay off my cards every month so I don’t carry a balance.

I’m very excited to be getting my spanky new card in the mail. I like that I’ll be earning miles (double miles actually) and that the credit is all mine. I’ll let you know if it’s as fabulous as I think it will be, hopefully from my free flight this time next year.

Capital One is sponsoring a giveaway through Traveling Mom. You can enter to win a Holiday Vacation Do Over. As in…tell us the story of your crummy family holiday (we’ve all had one) and how you would do it better if you had the cash.

The winner will receive plane tickets for four people and a five night stay at any hotel in the Continental United States. Estimated value $5,000

I am being compensated by Capital One for participating in this campaign. However my decision to apply for a Venture card was purely my own and Mr. LTM doesn’t even know about this, so keep it to yourself ok?