Article: Tuk Tuk your Way from an E-2 to EB-5 By David Hirson, Mona Shah, and David A. Enterline

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Tuk Tuk your Way from an E-2 to EB-5
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</h3><h4>by <a href=”http://discuss.ilw.com/articles/articles/391853-article-a-whole-new-eb-5-world-with-sam-udani-of-ilw-immigration-daily-%E2%80%93-episode-87-by-mona-shah#bio”>


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David Hirson, Mona Shah, and David A. Enterline
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Is E-2 to EB-5 a viable plan? What needs to be in place to make this work?
This Practice Advisory will discuss these questions and more to help you to
best advise clients interested in taking this pathway from NIV status to
green card via investment. This can be a great option for those who have a
business they want to run but do not want to wait two or more years to
receive their visas status.


With the increase in both adjudication times and visa backlogs,
practitioners have been creative in coming up with solutions. The E-2 to
EB-5 route has become increasingly popular and can be a viable and valuable
route to the U.S. for business-savvy immigrant investors.


What is an E-2 Visa? 


An E-2 is a temporary and non-immigrant visa based on a reciprocal
commercial treaty between the United States and the individual’s country of
nationality
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. It allows a citizen of an E-2 treaty country to be admitted to the U.S.
if he or she is “coming to develop and direct the operations of an
enterprise in which the applicant has invested a substantial amount of
capital”
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. E-2 investors may be accompanied or followed by spouses and unmarried
children who are under 21 years of age. Spouses of E-2 workers may also
apply for work authorization.


To qualify for E-2 classification, the treaty investor must: be a national
of a country with which the United States maintains a treaty of commerce
and navigation (even if his or her birthplace is elsewhere); have invested,
or be actively in the process of investing, a substantial amount of capital
in a bona fide enterprise in the United States; be seeking to enter the
United States solely to develop and direct the investment enterprise
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. This is established by showing at least 51% ownership of the enterprise
or possession of operational control through a managerial position or other
corporate device.


To sum up:


· Investment must be in a real and active commercial enterprise


· Such enterprise must be for profit


· Such enterprise must produce goods or provide services


· Idle investment (e.g. purchase of real estate) will not qualify


· Investor must demonstrate possession and control of the legally obtained
investment funds


· Sources of funds can be from any country


· Investment funds must be irrevocably committed and at a “risk of loss.”


· There is no minimum investment amount for E-2. It must simply be
substantial. What is a substantial amount is a subjective criteria and will
depend on many factors, such as the type of business, the location, initial
capital outlays to begin for that type of business, etc.


· The investor must show that the investment will not become a marginal
enterprise – it must generate more than enough income to provide a minimal
living for the investor and his or her family


· The investor must have a controlling interest in the business; i.e. more
than a 50% stake





How long can I remain in the U.S. on an E-2 visa? 


One of the advantages of an E-2 visa is that there is no time limitation.
An investor can remain in the U.S. on an E-2 visa for as long as the
business is operational. The visa can be approved as quickly as three
weeks. Investors from different countries have different visa validity
periods with the maximum available of 60 months. Sometimes a visa is
approved in increments of 24 months. One disadvantage, however, is that any
dependent child will not be included after he or she has reached twenty-one
years of age.


E-2 visa holders do not have to live in the U.S. for any particular amount
of time and may arrange their affairs so they are not subject to worldwide
taxation. While in the U.S., however, the treaty investor is restricted to
working only for the self-owned business that acted as the E-2 visa
sponsor. This does not preclude additional businesses. The spouse, but not
children, may apply for a work permit.


What is the cost involved for an E-2 visa? 


 


There is no minimum investment amount for E-2. The law simply states that
the investor must invest, “a substantial amount of capital” in relation to
the business. What this really means is that the amount invested depends
upon the business or project. One crucial factor for the E-2 visa is the
substantiality of the investment. $350,000 may be substantial for a small
grocery store but definitely not enough for a large manufacturing plant.
Additionally, the treaty investor must show that the investment will not
become a marginal enterprise. A marginal enterprise is an enterprise that
does not have the present or future capacity to generate more than enough
income to provide a minimal living for the treaty investor and his or her
family. A business that does not have the capacity to generate such income,
but that has a present or future capacity to make a significant economic
contribution is not a marginal enterprise.


What is an EB-5 Visa?


Section 203(b)(5) of the Immigration and Nationality Act (INA), allocates
10,000 “EB-5” immigrant visas per year to qualified individuals seeking
lawful permanent resident status on the basis of making a capital
investment in a new commercial enterprise to stimulate the growth of U.S.
economy
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.


To qualify, the investor make an investment of either US$500,000 or
US$1,000,000 into a new business that creates 10 full-time jobs for
qualifying U.S. workers and the investor must be involve in the management
of the business. For the management condition, being a limited partner in a
partnership
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or a member of a limited liability company will usually qualify the
investor as being involved in the management.


The investor must also demonstrate that by his investment, he or she will
create at least 10 jobs, or positions, for qualified U.S. workers. Upon
admission into the U.S. as a permanent resident, or an adjustment of
status, the investor is given conditional resident status. Within the 21st
and 24th month of obtaining conditional status, the investor must petition
to remove the condition
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.


The most important factor in qualifying for the EB-5 visa is that the
investor must be able to demonstrate that the capital he or she uses for
the investment was obtained lawfully. Proving the “source of funds” (SOF)
is the most challenging aspect of the EB-5 visa
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.


Benefits of EB-5 Investing


Provided that the investor can prove his or her source of funds, and in
some jurisdictions, abiding by the local currency exchange and remittance
restriction
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, qualifying as an investor is otherwise relatively simple and can be one
of the simplest of all the employment-based preference categories. An EB-5
investor/petitioner need no business or management or background or
experience, no minimum education level, no English language ability, and
under certain circumstances, might be of any age
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.


The end result is lawful permanent residence for the investor, spouse and
qualifying children.


Summary of some key differences between E2 and EB-5




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<tbody>
<tr>
<td width=”205″ valign=”top”>

ELEMENT

</td>
<td width=”205″ valign=”top”>

E-2

</td>
<td width=”205″ valign=”top”>

EB-5

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Visa Category

</td>
<td width=”205″ valign=”top”>

Non-Immigrant visa

</td>
<td width=”205″ valign=”top”>

Immigrant visa

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Management

</td>
<td width=”205″ valign=”top”>

Manage and direct the business

</td>
<td width=”205″ valign=”top”>

Relatively passive; limited partner or member of an LLC
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</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Experience

</td>
<td width=”205″ valign=”top”>

Should demonstrate the ability to successfully run the
business

</td>
<td width=”205″ valign=”top”>

No experience, education, language ability required

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Investment amount

</td>
<td width=”205″ valign=”top”>

Must be “substantial”- a subjective criteria

</td>
<td width=”205″ valign=”top”>

US$1,000,000 or reduced to US$500,000 if in a Target
Employment Area

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Profit requirement

</td>
<td width=”205″ valign=”top”>

Cannot be “marginal” – more than just enough to provide a
living

</td>
<td width=”205″ valign=”top”>

Must be a possibility to gain or risk of loss; no minimums
proscribed

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Family

</td>
<td width=”205″ valign=”top”>

Spouse can work (EAD); unmarried children under 21 also
have E-2 status

</td>
<td width=”205″ valign=”top”>

Spouse and unmarried children under 21 can join principle
petitioner; some countries have visa backlogs and thus
age-out issues

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Documentation of the business

</td>
<td width=”205″ valign=”top”>

Businesses are more individualized; documentation not as
easy to boilerplate

</td>
<td width=”205″ valign=”top”>

Offering documents are often standard across different
business/projects and often suitable for boilerplate
templates

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Loans

</td>
<td width=”205″ valign=”top”>

Generally cannot use borrowed money

</td>
<td width=”205″ valign=”top”>

Can invest borrowed capital

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Processing times

</td>
<td width=”205″ valign=”top”>

Can apply immediately at U.S. Consulate

</td>
<td width=”205″ valign=”top”>

Petition processing times vary widely from 12-24+ months
and 3-4 months through NVC processing to interview; several
countries with long visa backlogs

</td>
</tr>
<tr>
<td width=”205″ valign=”top”>

Investor status

</td>
<td width=”205″ valign=”top”>

Citizenship of an E-2 qualifying country

</td>
<td width=”205″ valign=”top”>

Country of Birth

</td>
</tr>
</tbody>
</table>




E-2 to EB-5 Transition


An E-2 visa does not automatically transition into EB-5. To petition for a
permanent green card under EB-5, the investor must have invested the
requisite capital amount, depending upon the location of the business, and
have created (or be able to create) the required 10 full time jobs. What is
important is that there is no minimum time requirement for an investor to
stay in E-2 status and that the E-2 capital investment may be counted
towards the EB-5 requirement.


Additionally, the entire investment must meet the EB-5 source of funds
requirement, which standard is more extensive than the source of funds
requirement for E-2 Visas. Not every business is suitable for the EB-5
transition. Certain businesses work very well, such as a hotel or
transportation.


EB-5 regulations only require a petitioner to be “in the process of
investing”
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the required minimum investment amount in order to file a Form I-526
petition. This can be rather difficult and tricky to accomplish in practice
though; therefore, many EB-5 practitioners advise EB-5 clients to invest
the full amount prior to filing or have a plan to finish investing the
necessary amount in a reasonable amount of time after filing the Form I-526
petition. USCIS adjudicators will be looking to see if the full amount has
been invested or not. If not, adjudicators will be looking to see when the
full amount will be injected and will most likely issue a RFE for such
information.


Due to this statutory language providing leeway, some EB-5 projects are
comfortable accepting EB-5 investors who provide an initial investment
along with signing a promissory note or providing a plan for how and when
the remainder of the investment will be made. This kind of situation boils
down to a negotiation between the EB-5 investor and business/project.
Either way, everything must be clearly documented and presented to USCIS in
the I-526 petition or at some later stage. In some instances, an EB-5
investor can get all the way to the I-829 petition stage and still be “in
the process” of investing. The regulations allow for such a case to exist,
but USCIS will issue a RFE asking for a concrete plan and evidence of how
and when the investment will be made prior to I-829 approval.


Escrow is commonly used in EB-5, but is not a statutory requirement. It is
a practice of the market. In the past, when processing times were much
shorter, it made sense for EB-5 investment funds to be placed into escrow
and released upon approval of petitioner’s I-526 petition. Now though, due
to protracted processing times, the overwhelming majority of EB-5
investments either: 1) “early release” investment funds upon filing of
I-526 petition or 2) forego escrow conditions altogether. In direct EB-5
situations, where the business owner is the EB-5 applicant, there is no
real need for escrow either. The path of the investment funds must be
clearly documented every step of the way. Any break in the path of funds
will be troublesome for the petition.


Grenada’s E-2 Program


Participants looking to obtain a second passport from one of more than a
score of Citizenship By Invesemtn Programs may consider choosing to become
Granadian citizens. The investor can choose between a donation of $200,000
or an investment into an approved real estate project of ~ $350,000. The
real estate option has benefits for those who are using the E-2 as a
stepping stone to the United States because it demonstrates a nexus to
Grenada through an official residence. The investment comes with a tax ID,
physical address and permanent residence that you don’t easily obtain with
the donation.


 
Chinese citizens can take advantage of the option to become citizens of
Grenada via the E-2 program and then come to the U.S. under the EB-5
umbrella—without ever traveling to Grenada. The entire process can be
completed from China, as there is no permanent residency requirement.


Grenada’s E-2 process is a speedy one. It can take as little as three to
four months to receive a passport, and as of December 18th, that Grenadian
passport will allow you to travel visa-free to 123 countries including
Russia, China and the UAE.


The E-2 is not a Dual Intent visa. It is important that practitioners time
the filing of the green card after the E-2 – not the other way around. It
is advisable to leave at least 4-6 months between the filing of each
petition.





Acceptable Use of Capital for E-2 vs EB-5





Use of Same Capital? 


The same capital that is used for the E-2 can and is often used. For this
reason, the source and path must be carefully documented. The profits from
the E-2 business can be used for EB-5 purposes, though it is advised



Distribution of Profits to Investor: Maintaining Minimum Investment
Through Removal of Condition



In an E-2 business, the E-2 investor can take funds from the E-2 company
and use them as part of the EB-5 minimum investment amount so long as such
funds meet the following requirements:


· Such funds taken out of the E-2 business do not cause the E-2 business to
fail, not be viable, or not meet the requirements of marginality (The
original E-2 investment amount can already be calculated as part of the
EB-5 investment amount if the E-2 and EB-5 business are the same. If the
E-2 and EB-5 businesses is the same investments/businesses, then the
minimum EB-5 investment capital must remain in the EB-5 business in order
for the investor and business to retain eligibility for the EB-5 visa)


· All relevant taxes are paid on funds taken out of the company. This means
that funds being withdrawn are counted as “distributions” and “retained
earnings”. A qualified tax professional should be enlisted to help with
properly documenting these distributions and earnings along with the
payment of related taxes.


After funds are properly withdrawn from the E-2 company, then the E-2
investor is free to use these funds as he or she sees fit. This can include
using these funds to make an EB-5 investment in to a new business or may
reinvest into the existing business to reach the minimum investment
requirement for EB-5.


We can consider the following 2 scenarios



Scenario 1: E-2 business and application eventually leading to an EB-5
investment and petition in the same business






In this scenario, a successful E-2 petitioner (named “Rose
”) is already in the U.S. and has a continuously viable E-2 business. She
has been regularly consulting with her immigration counsel to carefully
plan how to turn her E-2 business and investment into a successful EB-5
investment. The E-2 business only necessitated an initial investment of
US$250,000 to get up and running. This E-2 business is also still located
in a Targeted Employment Area (“TEA”). Since its start, this E-2 investment
has been very profitable and Rose is planning to take $300,000 in
distributions, pay all applicable taxes, and then use $250,000 to reinvest
into the E-2 business to meet the $500,000 minimum investment amount for
EB-5. Rose’s accountant and immigration attorney work with her to correctly
document her company’s profits and distributions which lead to her retained
earnings used as the remainder of her EB-5 investment. Her immigration
attorney explained to Rose that even though her business is doing well and
has a high valuation, she must still withdraw the necessary distribution in
order to have her EB-5 investment meet the “investment” requirement. Rose
understands that she cannot use her company’s “future profits” as her EB-5
investment. Her investment must be clearly documented as lawful and as her
own separate funds, not funds that still belong to her business. In the
source of funds section of her I-526 petition she is clearly able to
document where her initial $250,000 investment lawfully came from as well
as how the remaining $250,000 became her own personal funds before
reinvesting. Rose clearly showed the full $500,000 investment into her
company, with no overlap between her initial investment and the final
investment. The original $250,000 was left untouched in the E-2 business in
order to ensure her E-2 business and visa remained valid. In addition to
working with her immigration attorney, Rose is also working with an
experienced EB-5 business plan writer to ensure her EB-5 business plan is Matter of Ho-compliant. This business plan also includes detailed
plans and timelines of when Rose’s successful E-2 business will hire enough
employees to meet at least the minimum 10 full-time positions created.
Rose’s immigration counsel may advise her to leave and then return to the
U.S. (at least 90 days)
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before she files her I-526 petition. This affords Rose a full 2 years in
which her I-526 petition can be adjudicated before she has to worry about
dual-intent issues. (Note: E-2 visas do not allow dual-intent.)



Scenario 2: From the start, the E-2 business and petition is structured
to meet all EB-5 requirements
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[13]
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, petitioner funds the required EB-5 minimum investment amount, and
files I-526 petition right after entering the U.S. on E-2 visa.



In this scenario, Petitioner (named “Ronald”) works
closely with his immigration counsel to structure his E-2 business and
investment to meet all requirements of both the E-2 visa and the EB-5 visa.
Ronald plans to start a successful E-2 company in the U.S., and invests the
full US$1 million to meet the EB-5 minimum investment requirement (Ronald’s
business is not located in a TEA, so he must invest at least US$1 million).
Ronald’s business plan is Matter of Ho-compliant and details when
he will hire at least 10 full-time employees. He enters the U.S. on his E-2
visa and immediately files his I-526 petition.





Both Rose and Ronald worked closely with their immigration attorneys to
avoid causing dual-intent issues
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between their E-2 and EB-5 petitions.


In Conclusion: 


As foreign direct investment continues to grow in the United States, E-2
visas increase in popularity. The E-2 visas have been called the next best
thing to U.S. permanent residence, as it is possible to obtain through
self-employment and comes with an unlimited number of extensions. There are
no annual limits on the number of E-2 visas that can be issued to qualified
applicants. However, with no direct clear path to permanent residence, a
prospective E-2 investor should consider modeling the investment and the
business so as to provide him or her an opportunity to convert his status
into permanent residence via an EB-1 or an EB-5 visa in the future if he or
she so decides.

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[1] </a>
<a
href=”https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html”
>
https://travel.state.gov/content/tra…es/treaty.html
</a>
;

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[2] </a>
9 FAM 402.9 Treaty Traders, Investors, And Specialty Occupations –
E Visas


<a href=”https://fam.state.gov/fam/09FAM/09FAM040209.html”>
https://fam.state.gov/fam/09FAM/09FAM040209.html
</a>

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[3] </a>
<a
href=”https://www.uscis.gov/working-united-states/temporary-workers/e-2-treaty-investors”
>
https://www.uscis.gov/working-united…eaty-investors
</a>

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[4] </a>
INA 203(b)(5); 8 CFR 204.6

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[5] </a>
8 CFR §204.6 (j)(5)(iii)

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[6] </a>
INA Sec. 216A; 8 CFR 216.6

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[7] </a>
8 CFR §204.6(i)

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[8] </a>
The countries currently with the highest visa use – China, Vietnam
and India – all having such restrictions in place.

</div>
<div id=”ftn9″>

<a
href=”file:///C:/Users/ILW.COM/Downloads/Tuk%20Tuk%20your%20Way%20from%20an%20E2%20to%20EB5%2020190217.docx#_ftnref9″
name=”_ftn9″
title=””
>
[9] </a>
Extremely long visa backlogs in China has spawned petitioners under
the age of 18 which involved a variety of legal issues such as the
capacity of minors to be qualified investors and have the mental
capacity to make an informed investment, guardian and trust law
issues, and Securities and Exchange issues, the scope of which is
outside this practice advisory.

</div>
<div id=”ftn10″>

<a
href=”file:///C:/Users/ILW.COM/Downloads/Tuk%20Tuk%20your%20Way%20from%20an%20E2%20to%20EB5%2020190217.docx#_ftnref10″
name=”_ftn10″
title=””
>
[10] </a>
8 CFR §204.6 (j)(5)(iii); Although not expressed in the
regulations, USCIS has extended this section to include members of
a Limited Liability Company.

</div>
<div id=”ftn11″>

<a
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name=”_ftn11″
title=””
>
[11] </a>
INA §203(b)(5)(A)(i)

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<div id=”ftn12″>

<a
href=”file:///C:/Users/ILW.COM/Downloads/Tuk%20Tuk%20your%20Way%20from%20an%20E2%20to%20EB5%2020190217.docx#_ftnref12″
name=”_ftn12″
title=””
>
[12] </a>
In light of the 90-day rule, a conservative recommendation is to
wait 90 days after entering the U.S. and then filing the petition.

</div>
<div id=”ftn13″>

<a
href=”file:///C:/Users/ILW.COM/Downloads/Tuk%20Tuk%20your%20Way%20from%20an%20E2%20to%20EB5%2020190217.docx#_ftnref13″
name=”_ftn13″
title=””
>
[13] </a>
It is important to note that the standards for E-2 are
significantly less strict than the standards for EB-5. Therefore,
when combining E-2 with EB-5, an applicant should be looking to
meet the EB-5 standards.

</div>
<div id=”ftn14″>

<a
href=”file:///C:/Users/ILW.COM/Downloads/Tuk%20Tuk%20your%20Way%20from%20an%20E2%20to%20EB5%2020190217.docx#_ftnref14″
name=”_ftn14″
title=””
>
[14] </a>
See
INA §214(b)

</div>
</div>
<hr/><h4>
<a name=”bio”></a>
About The Author 
</h4>

<!–AUTHOR BIO START–>
<a>David Hirson </a>has more than 35 years of experience in corporate immigration law, specializing in business and investment immigration. David is the founding and manager partner of David Hirson & Partners, LLP (“DHP”), and he is internationally-recognized for his decades of success in investment immigration. He has been certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization continuously since 1990. David’s success with investment immigration has spanned decades, as seen by his involvement with the EB-5 program since its inception in 1990. DHP’s attorneys have over 70 years of combined experience in advising individuals, start-ups, large corporations, hospitals, and universities in navigating complex areas of employment immigration. The firm’s business and employment-based immigration practice provides a full range of services, including EB-1-1(A), EB-1-2(B), EB-1-3(C), National Interest Waivers (NIW), EB-2, EB-3, EB-5, H-1B, E-1/2, L-1(A)/2(B), H1B, and other immigrant and non-immigrant visas. DHP is one of a select few firms that also specialize in immigration for franchise businesses who have foreign partners/managers. David’s firm also works closely with individuals and HR departments to understand their needs and customize an immigration plan that surpasses their expectations.

<a href=”http://mshahlaw.com/about-us/” target=”_blank”>Mona Shah, Esq.</a> Born in the UK, Mona graduated from the University of Northumbria in England (UK) in 1990. Mona was admitted as a Solicitor of the Supreme Court of England & Wales in 1993 and was admitted to the New York Bar and the United States Federal Bar in 1997. While in England, Mona trained with various firms before her appointment as a Crown Prosecutor with the British Crown Prosecution Service. After moving to New York, she established Mona Shah & Associates Global (MSA Global) in 1997. Mona has over 26 years of legal experience.
A part-time adjunct professor at Baruch College, CUNY University, Mona is a published author, a Lexis Practice Advisor and co-editor of the Trade & Invest Magazine (BLS Media). Mona regularly speaks worldwide, interviewed by mainstream news channels, including Fox Business News, Al Jazeera and quoted in major newspapers, including the New York Times. Mona is a member of the Presidential Advisory Board of IIUSA, and hosts the first EB-5 podcast series (88+ episodes).

<a>David A. Enterline</a> is Of Counsel of WTW – Taipei Commercial Law Firm, in Taipei, Taiwan, and Managing Partner of Enterline and Partners Consulting in Ho Chi Minh City, Vietnam. David has lived and worked in Asia for more than 26 years predominately practicing U.S. immigration law in China, Hong Kong, and Taiwan, and more recently, Vietnam. David focuses on representing high net worth individuals from across Asia seeking to immigrate to the U.S. via the EB-5 Immigrant Investor visa, as well as other U.S. business and investment visa categories. He is active in the AILA Bangkok District Chapter having served in various leadership positions and currently serves as Treasurer.

<hr/>
<div class=”ilwFinePrint”>The opinions expressed in this article do not necessarily reflect the opinion of 
ILW.COM.</div>
</div>
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