How can an E-2 Visa Holder Apply for a Green Card 2022-2023?

Are you in the United States on an E-2 visa or would like to apply for an E-2 visa? Would you like to know how to transition from an E-2 visa to a green card? If so, this is the right video for you. Here you will find information on the different paths to permanent residency that may be suitable for investors to consider in 2022/2023.

Did you know? The E-2 is a nonimmigrant visa type that is available for individuals from certain treaty countries that wish to remain in the United States on a temporary basis to manage their businesses in the United States. Qualified investors are granted an initial stay of 2 years in E-2 status, with additional extensions of up to 2 years each up to the visa’s validity. E-2 investors who wish to make the United States their permanent home, may wish to consider the following options. If you would like to know more information about these options, we invite you to schedule a consultation.

Overview

What is the E-2 visa?

The E-2 Treaty Investor visa is a nonimmigrant visa type, that allows a national of a participating treaty country to gain entry into the United States, for the purpose of managing their business. To be eligible, applicants must invest a substantial amount of capital in their U.S. business, demonstrate at least 50% ownership, and seek to work in a position to develop and direct their business.

The E-2 visa is issued for an initial period of 2 years. However, the main benefit is that there is no limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

With that being said, circumstances sometimes lead E-2 investors to consider making the United States their permanent home, which leads to a common question – how can E-2 investors transition from a nonimmigrant visa type to permanent residency in 2022/2023?

Options for Permanent Residency

Employment Sponsored Green Card also known as “PERM” Labor Certification

The first option that may be considered is obtaining permanent residency through employment-sponsorship through a process known as “PERM” labor certification.

To proceed with this option, the applicant must first have a job offer of future employment from a U.S. employer and the employer must be willing to sponsor the applicant’s employment-based petition.

E-2 investors may find this to be a suitable option if they have an associate, partner, client, etc. interested in hiring them for a future position and acting as their sponsor throughout the PERM process.

Alternatively, spouses of E-2 principal investors are legally authorized to work in the United States. As such, their employers can go through the labor certification process to petition for their permanent residence, so long as they meet the necessary requirements.

It is important to know that before a U.S. employer can submit the immigration petition to USCIS, the employer must first obtain an approved labor certification from the U.S. Department of Labor (DOL) through a process known as PERM labor certification.

The PERM labor certification can be summarized in 2 major steps:

U.S. Labor Market Test: The first step is for the U.S. employer to participate in a labor certification process to test the U.S. labor market by recruiting to determine if there are any able, willing, available and qualified U.S. workers for the position to be offered to the foreign national. Recruitment requires the employer to advertise the position and review resumes of potential candidates, prior to filing the application to ensure that there are no other qualified U.S. workers available.
Prevailing Wage Determination: The U.S. employer is also required to offer at least the prevailing wage for the position, as determined by the Department of Labor, based on the job requirements and location of employment. A prevailing wage determination from DOL must be obtained before filing the PERM application once recruitment has been conducted.

As indicated, the labor certification process is necessary to prove that there are insufficient available, qualified, and willing U.S. workers to fill the position being offered, and that hiring the worker will not adversely impact the wages and working conditions of similarly employed U.S. workers. While the U.S. employer is undergoing the labor certification process, E-2 investors can continue to run their companies. E

Only once the labor certification is approved, can the U.S. employer file the I-140 Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Services. Once the I-140 is approved, then the investor can proceed with filing the I-485 green card application with USCIS.

In the case of E-2 spouses undergoing the labor certification process, once their I-140 petition is approved, they can file the I-485 green card application and include their family members such as the E-2 principal investor and qualifying children.

Green Card through the EB-2 National Interest Waiver

A second option, known as the EB-2 National Interest Waiver, is most suitable for E-2 investors who hold an advanced degree or are persons of exceptional ability in the sciences, arts, or business, and are seeking to work in an area of National Interest to the United States government. Exceptional ability means that you have achieved expertise that is above that ordinarily encountered in your profession.

Applicants seeking a National Interest Waiver may self-petition (they do not need an employer to sponsor them) and may continue to work in E-2 visa status in the United States, while their National Interest Waiver petition is pending approval with USCIS.

Essentially, those seeking a National Interest Waiver are requesting that the job offer, and thus the labor certification, be waived because it is in the interest of the United States (his or her work is of national importance to the U.S. government).

The Dhanasar Criteria – Proving National Interest

The endeavors that qualify for a national interest waiver are not defined by law. Instead, USCIS considers the following three factors to determine whether the applicant’s work is in the National Interest, also known as the Dhanasar criteria:

The proposed endeavor has both substantial merit and national importance.
You are well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

If an applicant is seeking a NIW based on exceptional ability (not an advanced degree), they must also meet at least three of the following criteria:

Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
Letters from current or former employers documenting at least 10 years of full-time experience in your occupation
A license to practice your profession or certification for your profession or occupation
Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
Membership in a professional association(s)
Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Other comparable evidence of eligibility is also acceptable.

In some circumstances E-2 investors have achieved great success as owners of their businesses and can demonstrate that their work is of national importance to the United States.

For example, we represented an E-2 investor who launched a bakery in the United States that became extremely successful. One of the unique features of his bakery was that it produced a line of gluten-free products for individuals suffering from celiac disease and other health sensitivities. Other products were also launched including health-conscious alternatives to those on the market, that helped Americans fight obesity. Due to his efforts fighting obesity, promoting health and wellness, and the national impact of his products sold in stores nationwide, his National Interest Waiver was successfully approved.

The National Interest Waiver is by far the preferred method to attain permanent residency for those who qualify.

Green Card through Family-Sponsorship

Finally, the third option for E-2 investors to attain permanent residency is through family-sponsorship from a qualifying relative.

If you are an immediate relative of a U.S. citizen, your relative can petition for your green card based on your qualifying family relationship by filing Form I-130 Petition for Alien Relative.

Immediate relatives of U.S. Citizens include a spouse, unmarried children under 21 years of age, and parents of U.S. Citizens (if the U.S. Citizen is 21 years of age or older).

Other family members are also eligible but are subject to numerical limitations pursuant to the Visa Bulletin:

unmarried sons and daughters (21 years of age and older) of U.S. citizens;
spouses and children (unmarried and under 21 years of age) of lawful permanent residents;
unmarried sons and daughters (21 years of age and older) of lawful permanent residents;
married sons and daughters of U.S. citizens; and
brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older).

As with the previous options, E-2 investors can continue to run their business during the family-sponsorship process.

Conclusion

In summary, the top 3 pathways to U.S. permanent residency for E-2 investors include (1) employment sponsorship through the PERM Labor Certification Process (2) the EB-2 National Interest Waiver for individuals with advanced degrees or exceptional ability in their field, working in the national interest and (3) Family-Sponsorship through a qualifying family relative.

If you would like to explore your eligibility for these immigrant visa types, we invite you to contact our office for a consultation.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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