EB-5 For Investors, Juveniles And Religious Workers

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Dallin Lykins
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The Immigrant Investor Program, also known as "EB-5", was created by Congress in 1990 under § 203(b)(5) of the Immigration and Nationality Act (INA) to stimulate the U.S. economy through job creation and capital investment by alien investors. Foreign national investors have the opportunity to obtain lawful permanent residence in the U.S. for themselves, their spouses, and their minor unmarried children by making a certain level of capital investments and associated job creation or preservation.

There are two distinct EB-5 pathways for an alien investor to gain lawful permanent residence, the Basic Program and the Regional Center Pilot Program. Both programs require that the alien investor make a capital investment of either $500,000 or $1,000,000 (depending on whether the investment is in a Targeted Employment Area or not) in a new commercial enterprise located within the United States. The new commercial enterprise must create or preserve full-time jobs for qualifying U.S. workers within two years of the alien investor's admission to the United States as a Conditional Permanent Resident (CPR). When making an investment in a new commercial enterprise affiliated with a USCIS-designated regional center under the Regional Center Pilot Program, an alien investor may satisfy the job creation requirements of the program through the creation of either direct or indirect jobs. Notably, an alien investing in a new commercial enterprise under the Basic Program may only satisfy the job creation requirements through the creation of direct jobs.

E-2 Investor Visa

There is also a method to obtain a temporary visa by investing in the U.S. The E-2 treaty investor visa is defined by Section 101(a) of the Immigration and Nationality Act and provides for nonimmigrant visa status for nationals of countries that maintain an appropriate treaty of commerce and navigation with the U.S. or that is considered to be a treaty country under U.S. law. Colombia has a treaty with the U.S., so this requirement is satisfied. The applicant must be coming to the U.S. to carry on substantial trade or to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital. The E-2 visa does not confer permanent residence in the US nor does it lead to U.S. citizenship. However, below we discuss how one may gain permanent resident status.

In order to qualify for an E-2 investor visa, the foreign national must have invested or is actively in the process of investing in an enterprise in the U.S. The funds must be in the employer's possession or control and the funds must be "at risk". The capital must be the investor's unsecured personal business capital or capital secured by personal assets. In addition, intent or prospective plans to invest are insufficient. Funds must be irrevocably committed to the business. The investor must also demonstrate possession and control of the funds invested. In order for the foreign national to be "in the process of investing," the foreign national must be close to the start of actual business operations.

The enterprise must be producing some service or commodity for profit. In addition, the enterprise must meet the legal requirements for doing business in the particular jurisdiction. As stated above, uncommitted funds do not qualify as active investment unless there is evidence to demonstrate that the funds are being used in the routine operation of the business.

There is no set dollar figure established to constitute a minimum amount of investment which is considered to be "substantial" for E-2 visa purposes.

The requirement of the substantiality test is met by satisfying the "proportionality test." That is: (1) the amount of qualifying funds invested; and (2) the cost of an established business or, if a newly created business, the cost of establishing such a business. The cost of a newly created business is the actual cost needed to establish such a business to the point of being operational. The cost of an established business is, generally, its purchase price, which is normally the fair market value.

In order to qualify for an E-2 visa, the foreign national must not be investing in a marginal enterprise. An enterprise is marginal if it does not have the present or future capacity to generate more than minimal living for the investor and his or her family. In other words, the investment cannot be solely for the purpose of earning a living.

Factors to be considered are: (a) whether the investment will expand job opportunities; (b) whether the investment will generate other sources of income; (c) whether the investment will generate income substantially above what would be considered earning a living; and (d) the investor will not work simply as a skilled or unskilled worker. As a general rule, the projected future income should be realizable within five years from the date of commencement. To satisfy this requirement, you will need to draft a comprehensive business plan showing projected future income realized within five years.

The foreign national's position must be to develop and direct the enterprise. In order to meet this requirement, the foreign national must manage the business and not work as a skilled laborer. In addition, the applicant must demonstrate that he or she will develop and direct the investment enterprise. The foreign national must demonstrate at least 50 percent ownership of the enterprise. This can be shown by possession of operational control through a managerial position. In the case of a joint venture or equal partnership, an equal share of the investment does give controlling interest, as long as each retains full management rights and responsibilities.


Special Immigrant Juvenile Status (SIJS) is granted for purposes of obtaining relief for a child (anyone under age 21 and unmarried) from abuse, neglect or abandonment. A child that may qualify for SIJS is one who is under the jurisdiction of a juvenile court as a result of abuse, neglect or abandonment, cannot be reunited with a parent, and for whom return to their country of nationality is not in their best interest. Special Immigrant Juvenile Status (SIJS) allows a child to remain in the United States, to eventually obtain lawful permanent residency, and provides them with a government-issued photo identification card and employment authorization.

Requirements for SIJS:

Following amendments to the TVPRA in 2008, a special immigrant juvenile is defined as one who is present in the United States:

  • Under age 21;
  • Unmarried;
  • Declared dependent in a juvenile court located in the U.S. for whom such a court has legally committed to or placed under the custody of an agency or department of a state or an individual or entity appointed by a state, or juvenile court located in the U.S.;
  • Whose reunification with one or both of the immigrant's parents is not viable due to abuse, neglect or abandonment, or a similar basis found under state law; and
  • For whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to their or their parents' previous country of nationality or country of last habitual residence.

Religious Workers

Religious workers include ministers of religion who are authorized by a recognized denomination to conduct religious worship and perform other duties usually performed by members of the clergy such as administering the sacraments, or their equivalent. The term does not apply to lay preachers. Religious vocation means a calling to religious life, evidenced by the demonstration of a lifelong commitment, such as taking of vows. Examples include nuns, monks, and religious brothers and sisters. Religious occupation means a habitual engagement in an activity which relates to a traditional religious function. Examples include liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters. It does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or similar occupations. The activity of a lay-person who will be engaged in a religious occupation must relate to a traditional religious function. The activity must embody the tenets of the religion and have religious significance, relating primarily, if not exclusively, to matters of the spirit as they apply to the religion.