Alternatives to EB-5 Investor Program for China & Vietnam

The EB-5 program has been of enormous benefit to the U.S. economy and to foreign investors seeking permanent residence in the United States.  Under the EB-5 program entrepreneurs are eligible to apply for a green card (permanent residence) if they make the necessary investment in a commercial enterprise in the United States and can show that the investment generates ten or more permanent full-time jobs for U.S. workers.  Since the program’s creation, thousands of foreign investors and their families have been able to become permanent residents and citizens of the United States.  

In recent years, however, two major obstacles have arisen for entrepreneurs who would like to immigrate to this country under the EB-5 program:  (1) the massive volume of applications from China and Vietnam has created a back-log of applications from those countries, so that now the current wait time for an EB-5 immigrant visa to become available is around four years; and (2) Congress continues to throw the program’s very existence into doubt, as varying voices on both sides of the aisle call for increases to the required minimum investment amount and tighter controls on types of investments permitted, while still others seek to cancel the program altogether.  As of the time of writing, the EB-5 program is funded through September 30, 2018, but congressional action will be required to extend the program past that date. 

In this period of extremely  long wait times and the possible abolition of the EB-5 program, are there any alternatives for foreign investors to getting a green card in the United States?  Fortunately, the answer is yes.  Below are four options we urge our readers to consider: 

  1. EB-1:  This category of immigrant visa is reserved for someone who is:
  • A person of extraordinary ability in his or her field of endeavor;
  • An outstanding professor or researcher;  or
  • A multinational manager or executive.  This third sub-category could be especially appealing for foreign entrepreneurs who already manage or direct their own businesses abroad, because they qualify if they have been employed in a managerial or executive capacity outside the United States for at least one year in the three years immediately preceding the petition.   There is no minimal investment, but the petitioning employer must be a U.S. employer.   
  1. EB-2 National Interest Waiver

Foreign investors seeking a national interest waiver are able to bypass (or waiver) the lengthy and cumbersome labor certification process and receive a green card if they can demonstrate that they have “exceptional ability” based on certain criteria and whose employment in the United States would greatly benefit the nation.  One great advantage of the NIW immigrant visa category is that applicants do not need a US employer to sponsor them:  they can self-petition.   NIW applicants must document (among other things) at least 10 years of full-time experience in ones occupation. 

  1. L1-A Intra-company Manager/Executive Transfer

The L-1A visa is a nonimmigrant visa, i.e. not a green card, for multinational managers or executives transferring to the United States to work for a U.S. employer with a qualifying relationship with the beneficiary’s foreign employer.   There must be a U.S. employer to sponsor the beneficiary, who must have worked in a managerial or executive capacity for the foreign entity for at least one full year in the previous three years preceding the application.   The L-1A visa holder can later be sponsored for permanent residence by his or her U.S. employer as an EB-1 Multinational Executive or Manager.   This is an attractive option for many U.S. employers who, for a host of business reasons, may wish to wait for a period of time before sponsoring someone for a green card.   The L-1A is also attractive for a foreign entrepreneur who has been directing a foreign enterprise and wishes to start a U.S. company, which can later serve as the L-1A sponsoring employer.  There are risks associated with this approach, however, and consultation with a wise immigration attorney is highly recommended. 

  1. E-2 Treaty Investor

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to receive a nonimmigrant visa to the United States when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.   To qualify for this visa, the investor must be a national of a country with which the United States maintains a treaty of commerce and navigation; have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and, be seeking to enter the United States solely to develop and direct the investment enterprise.   Unlike the EB-5 program, there is no minimum investment amount, but the investment  must be sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise and of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.   As with the L-1A visa, an E-2 visa holder may later seek permanent residence under the EB-1 Multinational Executive/Manager program, so long as the requirements are met, i.e. the beneficiary was employed in a managerial or executive capacity by a foreign entity for at least one full year in the three years immediately preceding the E-2 application.  The E-2 option is particularly appealing for many foreign investors who may not have the minimum investment amount to qualify for the EB-5 program.   

   Unfortunately,  investors from China, Vietnam, or India are not eligible for E-2 classification because these countries do not have a treaty of commerce and navigation with the United States.  However, there are creative solutions to this problem:  many citizens of these countries who seek E-2 classification to the United States take advantage of the generous citizenship laws of countries like Grenada or Panama, which both have E-2 treaties with the United States.  By becoming a citizen of one of these countries, the applicant can then seek E-2 classification in the United States and then apply for permanent residence later.  This process takes longer, but is an appealing option for Chinese and Vietnamese investors who cannot benefit from the EB-5 program due to visa retrogression.  

The EB-5 program remains a strong and attractive option for foreign investors seeking to immigrate to the United States.  However, for persons from China and Vietnam, the EB-5 program is not currently available, so the challenge is to find creative options that will achieve the same goal:  a green card.  This blog post has described some of these options. Contact the Law Office of Gregory J. Eck to find out more.

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