application before USCIS ; the State Department ’ s E-2 visa rules under Chapter 9 of the Foreign Affairs Manual ( FAM ) do not contain such language and the consular officer may still deny the E-2 visa renewal under INA 214 ( b ). Advise your client accordingly to avoid him or her being stuck outside of the United States , waiting for immigrant visa processing of the EB-5 case , thus placing the operations of his or her U . S . business at risk .
RESIDENCY REQUIREMENTS
A nonimmigrant E-2 visa holder has no limits or restrictions in terms of minimum stay inside or outside of the United States . As long as the visa and passport remain valid and the investor is otherwise admissible , an E-2 visa holder may enter the United States in E-2 status . An EB-5 investor , however , is a lawful permanent resident ( even if conditional ) and is subject to certain presumptions which may result in the EB-5 investor unintentionally abandoning his or her U . S . resident status should he or she spend too much time ( more than 180 days per trip ) outside of the United States .
BEWARE OF THE TAX MAN
An E-2 investor , who may or may not become subject to
U . S . tax laws , should first receive expert tax advice prior to considering an adjustment of status or immigrant visa processing to become a U . S . permanent resident . The reporting of worldwide income and assets required of U . S . residents might be something a particular E-2 client would just as soon do without .
EB-5 AS AN ALTERNATIVE TO PERPETUAL H-1B EXTENSIONS
In the case of an H-1B worker born in India , the EB-5 category can be a powerful alternative to filing H-1B petitions every one to three years while waiting for an EB-2 or EB-3 immigrant visa number . The waiting time for a current priority date / available immigrant visa number for a worker born in India was over nine years for EB-2 ( advanced degree ) and over 10 years for EB-3 ( skilled or professional worker ) in the spring of 2018 .
The caveat here may be that as more Indian-born EB-5 investors file their I-526 petitions and move through the case processing pipeline , the likelihood grows that a visa number cutoff date will become necessary and that Indians may face a visa number retrogression that ’ s similar to the Chinese , but likely to a lesser degree . Until that time , Indians with H-1Bs will continue to consider EB-5 as an option .
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