What steps can an E-2 visa holder take to prepare for a smooth transition if seeking to convert to an EB-5 immigrant investor visa?

Many E-2 treaty investor visa holders reach a point where renewing a temporary visa no longer feels like a long-term solution. They may have an established business, U.S. employees, and deep financial ties to the United States. At that stage, questions about permanence often become unavoidable.

The E-2 visa allows an investor to live in the United States only as long as the business remains active and the visa remains valid. Each extension depends on continued eligibility. There is no direct path from E-2 status to permanent residence.

When E-2 investors begin thinking about long-term residence, they often review other visa options. The appropriate path depends on factors such as the nature of the business, the level of investment, and the ability to meet specific statutory requirements.

One immigrant category that some E-2 investors evaluate during this process is the EB-5 immigrant investor visa. The EB-5 classification is intended for investors seeking permanent residence and has specific investment and job creation requirements. An E-2 visa holder considering this option should understand what EB-5 requires and what may need to be reviewed before moving forward.

Understanding the E-2 and EB-5 visa categories

To qualify for an E-2 treaty investor visa, the following requirements must be met:

• The investor must be a national of a country that has a qualifying treaty of commerce and navigation with the United States.
• The investor must be coming to the United States to develop and direct a U.S. business.
• The investor must have invested, or be actively in the process of investing, a substantial amount of capital.
• The investment must be in a real and operating commercial enterprise.
• There is no fixed minimum investment amount, but the investment must be sufficient to ensure the successful operation of the business.
• The invested funds must be irrevocably committed and subject to commercial risk.
• The business must be more than marginal, meaning it has the present or future capacity to generate more than minimal income.
• E-2 status depends on the continued operation of the business and ongoing eligibility.

To qualify for an EB-5 immigrant investor visa (Employment-Based Fifth Preference), the following requirements must be met:

• The investor must make a capital investment in a new commercial enterprise in the United States.
• The minimum investment amount is $1,050,000 for a standard investment, or $800,000 for an investment made in a Targeted Employment Area (TEA).
• The invested capital must be placed at risk for the purpose of generating a return.
• The investment must result in the creation of at least 10 full-time jobs for qualifying U.S. workers.
• The investor must be able to document that the investment funds were obtained through lawful means.
• Eligibility is determined based on the evidence submitted with the EB-5 petition.

Moving from E-2 to EB-5

The E-2 and EB-5 are separate visa categories. When an E-2 visa holder later pursues EB-5 classification, the filing is evaluated under EB-5 requirements in effect at the time it is submitted.

EB-5 eligibility is determined based on the investment, job creation, and source of funds evidence provided with the EB-5 petition itself. Prior E-2 compliance does not substitute for this review.

For an E-2 visa holder considering this move, preparing in advance means looking closely at a few key areas:

• Review the investment amount for EB-5

An E-2 visa holder considering EB-5 should assess whether the total amount of capital invested, or planned to be invested, meets the EB-5 minimum thresholds. EB-5 requires a minimum investment of $1,050,000, or $800,000 if the investment qualifies under a TEA. Capital counted toward EB-5 must be fully committed to the enterprise and placed at risk for the purpose of generating a return.

• Plan for EB-5 job creation requirements

EB-5 eligibility requires the creation of at least 10 full-time jobs for qualifying U.S. workers. An E-2 investor should assess whether the business can support this level of employment within the required timeframe.

This review focuses on current staffing, planned hiring, and whether positions qualify as full-time under EB-5 rules.

• Organize lawful source of funds records

EB-5 requires detailed documentation showing that all invested capital was obtained through lawful means. An E-2 investor should review whether records exist to trace the full path of funds used or intended for the EB-5 investment.

This review includes identifying gaps in documentation, such as missing tax records, bank statements, or transaction histories.

• Maintain lawful status while an EB-5 petition is pending

Filing an EB-5 petition does not provide immigration status or extend an existing stay. An E-2 visa holder remains responsible for maintaining valid E-2 status, or other lawful status, while the EB-5 petition is under review.

Sources:

1. USCIS. https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors
2. USCIS. https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program
3. USCIS. https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-immigrant-investor
4. U.S. Department of State. https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visa-e.html