NATIONALITY
An E-2 investor must establish the nationality of the commercial enterprise by showing that he or she owns at least 50 percent of the shares of the company . Therefore , an investor from a treaty country who wishes to immigrate and become a U . S . permanent resident likely will be applying for a direct EB-5 because regional center EB-5 projects do not allow an investor to hold at least 50 percent of the shares in the new commercial enterprise .
There is no nationality requirement for EB-5 . The country of birth is relevant to all immigrant visa applicants because that is the country of chargeability for determining immigrant visa number availability based upon statutory per-country limits . China is oversubscribed . Vietnam and India are not far behind . Unfortunately , the United States does not maintain an investment treaty with any of these countries .
MARGINALITY
E-2 regulations require that the investment must be more than “ marginal ,” which means that the company must have the present or future capacity to generate more than enough income for the investor or demonstrate that it will create a positive economic impact on the local economy . For new E-2 businesses , this requirement is met by showing a business plan that projects either high profits or at least some employment creation within the first five years of business operations .
BUSINESS PLAN
An EB-5 business plan , on the other hand , has more strict and different requirements , such as the requirement to demonstrate at least 10 full-time positions will be created for qualifying U . S . workers within the two-year conditional period of permanent residency . An attorney representing an investor client who is considering an E-2 first and a potential EB-5 later would be well-advised to have the E-2 business plan written with the EB-5 requirements in mind .
LAWFUL SOURCE OF FUNDS
Another requirement for both E-2 and EB-5 is to demonstrate the lawful source of the invested capital . Again , the E-2 and EB-5 requirements are slightly different , but as in the case of the business plan , the EB-5 requirements for lawful source of funds are more stringent than for an E-2 .
Therefore , in documenting an initial E-2 , an attorney might consider going the extra mile in requesting detailed documentation on the source and path of the investor client ’ s E-2 funds , just in case an EB-5 might be in the client ’ s future . If the E-2 invested funds are contemplated to be counted in a later EB-5 case , it would be wise to comply with the EB-5 source of funds documentation requirements .
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