Author: H. Ronald Klasko

With the unprecedentedly long waiting list under the EB-5 quota for Chinese investors, we have been regularly requested to evaluate two alternative options for immigration to the U.S. One option is the E-2 (Treaty Investor) visa, which requires first obtaining citizenship in the country of Grenada. The other option is the EB-1C (multinational manager) green card option.

The question of which option is better depends upon the situation of each investor. In order to assist investors in analyzing the two options, I have prepared the following summary:

Advantages of E-2 Visa Option

If the investor is interested in coming to the U.S. as quickly as possible, the Grenada E-2 option is better than the EB-1C option. With Grenada E-2, the investor can be in the U.S. within 5 to 6 months. With the EB-1C option, the investor is not likely to be in the U.S. in less than 18 months. However, if the investor wishes to first apply for an L-1 (intracompany transferee) visa, the investor may be in the U.S. quicker than with the E-2 option. However, this would require getting USCIS approval of the L-1 petition and, eventually, the EB-1C petition

If the investor wishes to avoid active management of the U.S. business, the E-2 option is better. For the E-2 option, the investor must “develop and direct” the business. This allows the investor to hire a manager, who reports periodically to the investor. With the EB-1C option, the investor must be actively involved in the management of the business.

If the investor wishes to start up a new business, the E-2 option is far superior. With the E-2 option, a minimal number of employees in the U.S. business is usually sufficient. With the EB‑1C option, the application cannot even be filed until the U.S. business has been doing active business for at least 1 year. USCIS generally requires multiple levels of employees for the EB‑1C to be approved.

If the investor wishes to avoid taxation on worldwide income, that can be done with the E-2 option depending on how much time the investor spends in the U.S. With EB-1C, the result is a green card, which automatically results in taxation on worldwide income.

If the investor wishes to invest in a franchise, the E-2 is a better option. If the investor wishes to apply for EB-1C, it is generally better if the investor has multiple franchises that he will manage and oversee.

If the investor is concerned with having his children in school in the U.S. at the earliest possible date, the E-2 is a better option than the EB-1C. However, as explained above, the L-1 visa may get the children to the U.S. quicker.

If the investor wishes to avoid having to deal with USCIS, the E-2 option is the only option that can be dealt with directly at a U.S. consulate with no involvement of USCIS. This is significant since USCIS is extremely restrictive on small company and start-up L-1 and EB-1C cases.

If the investor does not have a sizable overseas business that will continue in operation, the E-2 is a far better option. No overseas business is required. For the EB-1C, the investor has to show a sizable overseas business operation with multiple tiers of employees that the investor has actively managed for at least 1 year.

If the investor does not own a business in China, the EB-1C is not an alternative unless the business in China buys a business in the U.S. No foreign business ownership is required for E-2.

Advantages of the EB-1C

If the investor wishes to get a green card, EB-1C achieves that result. The E-2 visa does not lead to a green card and must be renewed every 5 years.

If the investor wishes to make the smallest possible investment in the U.S., the EB-1C may be a better option. There is no exact amount of investment required for the EB-1C. The more important issue is the number of employees in the U.S. and in China. With the E-2 option, an investment of at least $350,000 (including obtaining citizenship in Grenada and buying the U.S. business) is generally required.

If the investor is concerned about obtaining dual citizenship, the EB-1C is a better option. The E‑2 visa requires obtaining Grenada citizenship.

If the investor is concerned with having a child obtain a green card so as not to have to go through the employer sponsorship process, the EB-1C may achieve that result. The E-2 visa requires the child to change to F-1 student status at age 21.

Hopefully, this analysis will make the process of choosing between the E-2 option and the EB‑1C option clearer for our investor clients.

The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2017 Klasko Immigration Law Partners, LLP. All rights reserved. Information may not be reproduced, displayed, modified or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP. For permission, contact dlundy@klaskolaw.com.