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The E-2 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital. If the alien is inside the U.S., the I-129 should be used to apply for a change of status, extension of stay, or change of employment. This category does not require a petition for employment if the alien is outside of the U.S. In that case, the alien applies for this category on his or her own behalf directly to a U.S. consular office abroad. The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
The application must be filed with the appropriate fee payment, and evidence that:
The Immigration Act of 1990 provided that up to 7.1% of the worldwide level of visas, or approximately 10,000 visas would be granted to investors. In order to qualify, a person must invest a minimum of $1 million in a new commercial enterprise which employs at least 10 U.S. workers (exclusive of the immigrant, his spouse and his sons and daughters). However, if the investment is made in either a rural area or in an area experiencing high unemployment (at least 150% of the national average), the minimum amount required for the investment may be as small as $500,000. However, no more than 3,000 investor visas may be granted annually to persons investing in these "targeted employment areas." Due to the small number of applications received from persons seeking green cards through investment, the INS has issued regulations making it substantially easier for investors to qualify for permanent residence that a literal reading of the law would suggest. The structure of this provision of law is based upon the Immigration Marriage Fraud Act of 1986. In order to deter fraud, all alien registration cards issued by INS based on this provision are conditional, with a two-year expiration date. The condition is removed if, at the end of the period, the investor remains in full compliance with the law. By regulation , all investor petitions as well as extensions and changes of status to E-1 Treaty Trader applications and E-2 Treaty Investor applications must be submitted to either the California or the Texas Service Centers. Applications and petitions which were formerly submitted to the Nebraska Service Center must be submitted to the California Service Center while applications and petitions which were formerly submitted to the Vermont Service Center must be submitted to the Texas Service Center. Investor petitions include form I-526 (Petioner for Alien Entrepreneur) and form I-829 (Petition for Entrepreneur to Remove Conditions). The INS has become increasingly concerned that certain organizations are offering to obtain permanent residence for individuals under schemes which are debt instruments rather than real investments. The INS General Counsel concluded that participation in such a scheme does not qualify an individual for permanent residence. The 38-page INS memorandum, dated December 19, 1997, may be read by clicking All of the following decisions are in PDF (Portable Document Format). You will need to download the Adobe Acrobat reader (for free!) to view and print these decisions.
On May 3, 2001, Federal Judge George King ruled in Chang vs. U.S. that before the INS can revoke the temporary green card of a person under the immigration investor program using a rule which was issued after the person obtained conditional residence, the agency must allow the investors to prove that the retroactive application of the rule would hurt them. Unlike the temporary treaty investor visa ("E-2" visa) which is limited to countries having treaties with the U.S., investors and entrepreneurs from all countries may qualify for green cards. |
