How to switch from the E-2 visa to a green card

As we explain elsewhere, the E-2 visa is issued for up to 5 years. You can usually renew it again and again before it expires without much trouble, but keep in mind that the E-2 is a nonimmigrant visa: it does not automatically lead to permanent residence in the USA.

This can become a real problem for E-2 visa holders with children: once your children turn 21, they no longer count as dependents of the principal E-2 visa holder. They then have to either leave the United States or apply for a visa of their own. That is why many E-2 visa holders look for ways to move from an E-2 visa to a green card.

Here are 5 ways to get from an E-2 visa to a green card.

1Introduction to the E-2 visa

The E-2 visa is a nonimmigrant visa that lets foreign nationals start and work for a business in the United States. It is only available to citizens of countries that have an E-2 treaty with the United States. To get an E-2 visa, you must invest a substantial amount of capital in a US business and direct and develop that business. The funds you invest in the E-2 business must also have been lawfully acquired.

The E-2 visa is temporary, but it can be renewed again and again as long as the E-2 business keeps operating and meets all E-2 requirements.

The E-2 visa is also one of the US visa options for freelancers, the self-employed & influencers.

1.1The basic requirements for an E-2 visa at a glance:

• You must be from a country that has an E-2 treaty with the United States.
• You must intend to leave the United States when your E-2 status ends.
• You must make a substantial investment in a US business.
• The E-2 business cannot be a one-person operation
• The E-2 business must be an active, commercial enterprise
• You must come to the United States to direct and develop the E-2 business
• Your investment funds must have been lawfully acquired
• Your investment funds must be irrevocably committed or spent by the E-2 business, and therefore at risk of total loss.

Now that you know the E-2 requirements, let's look at some basics of moving from an E-2 visa to a green card.

1.2The E-2 visa is a nonimmigrant visa

As mentioned, the E-2 is a nonimmigrant visa category. That means an E-2 visa is temporary and does not lead directly to a green card.

2How to switch from an E-2 visa to a green card

To get a green card while on an E-2 visa, you need to apply for an immigrant visa. There are 2 ways to get from an E-2 visa to a green card:

• You can apply for an immigrant visa at a US consulate abroad; or
• You can adjust your status to immigrant status from within the United States.

2.1Applying for an immigrant visa at a US consulate (consular processing)

• If you are not lawfully present in the United States, you will most likely have to apply for an immigrant visa at a US consulate in your home country.
• This process is called "consular processing" or "visa processing".

2.2Adjustment of status

• If you are lawfully present in the USA, you can apply for adjustment of status.
• Adjustment of status is the process of converting your nonimmigrant status into immigrant status.
• The entire process takes place inside the United States. As long as you maintain lawful status, you do not have to leave the country.
• If you are in the United States in E-2 status, you will most likely go through adjustment of status.

Now that you know the two ways to turn your E-2 visa into a green card, let's look at another aspect of the E-2 visa.

3The E-2 "intent to depart" requirement

One of the requirements for an E-2 visa is that you intend to leave the United States once your E-2 status ends.

You might think this condition stops you from turning your E-2 visa into a green card. It doesn't.

According to USCIS, you remain eligible for E-2 status even if you have filed an application for adjustment of status.

This means you can change your status from an E-2 visa to a green card and still meet the requirement of intending to leave the USA once your E-2 status ends.

When you file your paperwork matters a great deal for getting your green card approved.

Working with an immigration attorney experienced in this process is key to your success. So bring in an immigration attorney as early as possible.

With the E-2 basics covered, let's turn to some other immigrant visa categories.

45 visa options for turning your E-2 into a green card

To get a green card, you need to move from your E-2 visa into an immigrant visa category.

Many immigrant visa categories could work. Below are 5 ways to turn your E-2 visa into a green card:

• EB-5 visa
• Employer-sponsored green card
• EB-1A visa, if you have extraordinary ability
• National interest waiver
• Marriage-based green card

5Option 1: Switch to an EB-5 green card

The EB-5 visa is an immigrant visa for investors. With an EB-5 visa, you, your spouse and your unmarried children under 21 are eligible for a green card.

Since March 15, 2022, getting an EB-5 visa requires you to invest at least $1,050,000 in a US business. If the business is in an economically weaker area classified as a "targeted employment area", the amount drops to $800,000. On top of that, your investment has to create 10 full-time jobs at the US business.

The EB-5 visa is very similar to the E-2 visa. Still, there are many important differences.

Both the E-2 visa and the EB-5 visa are investment-based. Because they have so much in common, converting your E-2 visa into an EB-5 visa is one of the simplest and most natural routes from an E-2 visa to a green card.

There are 6 basic requirements for an EB-5 visa:

• Invest in a new commercial enterprise
• Invest at least $1,050,000 (or $800,000 in targeted employment areas)
• Create 10 full-time jobs for US workers
• Lawful source of funds
• Funds must be "at risk"
• Be involved in managing the new commercial enterprise

Now let's look at the details:

5.1Invest in a new commercial enterprise

To get an EB-5 visa, you have to invest in a "new commercial enterprise".

A new commercial enterprise is a for-profit business that carries on lawful activities and was established after November 29, 1990.

As an E-2 visa holder, you have several ways to structure your EB-5 investment. You can:

• Invest additional capital in your E-2 business to qualify for an EB-5 visa
• invest in a new business
• invest in an existing business other than your E-2 business
• Invest in a regional center

One of the most convenient routes from an E-2 visa to a green card is investing additional capital in your E-2 business. You probably already know how to run it very well, and using your E-2 business as your future EB-5 business brings unique advantages (we cover them below).

Even so, there can be reasons not to put more capital into your E-2 business. Instead, you might prefer to invest in a regional center. A regional center is a USCIS-approved entity that pools money from multiple investors to develop a large project, such as a resort or a commercial office building.

If you invest in a regional center, you have very little say in how the business is run. Regional centers usually have a managing partner or managing member who handles day-to-day operations. Your role as an investor is typically limited to voting on major decisions.

5.2Invest at least $1,050,000 (or $800,000 in targeted employment areas)

To get an EB-5 visa, you have to invest at least $1,050,000 in a US business. This drops to $800,000 if you invest in a "targeted employment area".

Such an area is either an area with high unemployment or a rural area.

The advantage of investing additional capital in your E-2 business for an EB-5 visa

One of the main advantages of investing additional capital in your E-2 business to get an EB-5 visa has to do with the minimum investment amount.

If you choose to invest in your E-2 business to get an EB-5 visa, your initial E-2 investment plus any additional capital put into the business can count toward the minimum investment for an EB-5 visa.

So if you already made an initial investment of $100,000 in your E-2 business to get your E-2 visa, that amount can count toward your EB-5 minimum investment.

Example:

• Initial investment in the E-2 business: $100,000
• Minimum investment for the EB-5 visa: $1,050,000
• Total investment still needed for the EB-5 visa: $1,050,000 minus $100,000 = $950,000

Important note:

Retained earnings do not count toward your EB-5 investment. Money your E-2 business has earned and that currently sits in your E-2 operating account does not count toward your EB-5 investment. For business profits to count toward your EB-5 investment, you have to take the money out of the business and reinvest it in the E-2 business. Financially, this makes no sense. For immigration purposes, however, it is required.

An important question is whether or not your E-2 business is located in a targeted employment area.

Ideally, your E-2 business is located in a targeted employment area so you qualify for the reduced investment. That would allow the reduced minimum of $800,000.

If the E-2 business is not in a targeted employment area, your minimum investment will likely be $1,050,000, assuming you invest in your E-2 business. There may still be a way to qualify for the reduced amount by relocating your E-2 business to a targeted employment area. We are happy to discuss this option in a consultation.

If you choose to invest in a regional center, a new business or an existing business other than your E-2 business, you can still qualify for the reduced amount if that business is located in a targeted employment area.

Be sure to talk to an immigration attorney before making any investment decision. They can help you determine whether the area you plan to invest in qualifies as a targeted employment area.

5.3Create 10 full-time jobs for US workers

• To get an EB-5 visa, you have to create 10 full-time jobs for qualifying US workers.
• Full-time means at least 35 hours per week.
• Qualifying US workers include US citizens, US permanent residents and other immigrants authorized to work for your business.
• Nonimmigrants do not count toward the 10 jobs.
• Your children and your spouse do not count toward the 10 jobs.

The advantage of investing in your E-2 business for an EB-5 visa

Another advantage of investing in your E-2 business to get an EB-5 visa is that the jobs you already created with your initial E-2 investment can count toward the 10 jobs you need to create.

So if you have already hired 5 qualifying US workers for your E-2 business, you may only need to hire 5 more to get your EB-5 visa.

5.4Lawful source of funds

To get an EB-5 visa, your funds must come from a lawful source. They cannot come from illegal activity.

Examples of lawful sources of funds:

• Income from lawful employment
• Proceeds from the sale of a property
• Proceeds from the sale of a business
• A gift
• A loan

The E-2 visa also requires your funds to come from a lawful source. However, the source-of-funds requirements for the EB-5 visa are stricter than those for an E-2 visa.

If you plan to convert your E-2 visa into an EB-5 visa, be sure to consult an immigration attorney. They will help you plan how to prove that your funds come from a lawful source, and give you a detailed list of the documents to include with your EB-5 petition.

5.5The funds must be spent

As with the E-2 visa, your investment funds must be irrevocably spent by the business to get an EB-5 visa. 

The investment capital cannot just sit in a bank account as a reserve. The money has to actually be spent on the business, and you must face a real risk of having spent it without getting the visa.

5.6Be involved in managing the new business

To get an EB-5 visa, you have to take part in managing the new business.

You can meet this requirement by:

1. Handling the day-to-day management of the business; or
2. Setting strategy

If you are investing in your E-2 business, this should not be a problem.

The E-2 visa requires you to direct and develop the E-2 business. That "direct and develop" requirement calls for far more involvement in the company than the EB-5 requirement to "engage in the management of the enterprise".

So if you currently meet the "direct and develop" standard, you can either stay just as involved once you switch to EB-5 status, or scale back to making strategic decisions only.

Now that you know how to move from an E-2 visa to an EB-5 visa, let's look at the other ways to turn your E-2 into a green card...

6Option 2: Employer-sponsored green card

Another way to turn an E-2 visa into a green card is employer sponsorship: a company sponsors you or your spouse for a green card by offering a job.

A unique advantage of the E-2 visa: since November 2021, your dependent spouse is authorized to work based on their E-2 status alone. As the principal E-2 visa holder, you may only work for the E-2 business. Your spouse, on the other hand, can work in any lawful job.

To get a green card through employer sponsorship, a US employer must obtain an approved labor certification from the Department of Labor, you must be approved for an EB-2 or EB-3 visa, and you must adjust status or obtain a visa abroad.

It is a 3-step process:

1. The company obtains a labor certification
2. You apply for the employment-based visa
3. Adjustment of status or visa processing

6.1Labor certification

For a company to sponsor a foreign worker for a green card, it must obtain a labor certification from the US Department of Labor. This process is called PERM labor certification.

The labor certification process exists to prove 2 things:

1. That there are not enough qualified US workers willing and able to fill the position the US company is offering; and
2. That hiring a foreign worker will not negatively affect the wages and working conditions of US workers in similar roles.

The labor certification process in brief:

Your prospective employer must carry out certain recruitment steps, such as placing job ads in local newspapers.

• The employer's search for a qualified US worker must be unsuccessful.
• The job requirements must be typical for the position and not unduly restrictive.
• Your prospective employer must offer you a permanent, full-time position.
• Your prospective employer must pay you the "prevailing wage" or more for the position you are hired for.
• The prevailing wage is the average wage paid to workers in similar jobs in the area where you plan to work.
• Your prospective employer must prove it is able to pay you the prevailing wage.

6.2You apply for an employment-based visa

Once the labor certification is approved, you must apply for and be approved for an employment-based immigrant visa. This is separate from the labor certification. For this, your US employer files Form I-140 on your behalf.

There are 2 main employment-based immigrant visa classifications that go with PERM labor certification:

• The EB-2 visa
• The EB-3 visa

The EB-2 visa is available to professionals with advanced degrees or people of exceptional ability.

The EB-3 visa is available to certain skilled workers, professionals and unskilled workers.

6.3Adjustment of status or visa processing

• Finally, you must either adjust your status or apply for an immigrant visa at a US consulate abroad.
• Adjustment of status is done by filing Form I-485.
• Visa processing is done by filing Form DS-260.
• As mentioned, adjustment of status is only available to people currently in the United States lawfully. Otherwise, you must apply for an immigrant visa at a US consulate abroad.

7Option 3: EB-1A visa if you have extraordinary ability

Another route from an E-2 visa to a green card is the EB-1A visa.

The EB-1A visa is an immigrant visa for people with extraordinary ability in the arts, sciences, athletics, education or business. Extraordinary ability means you belong to the small percentage who have risen to the very top of their field. Learn more about the EB-1A visa here.

To qualify for an EB-1A visa, you must prove 3 things:

• That you have extraordinary ability
• That you will work in the US in the field in which you have extraordinary ability
• That your entry will substantially benefit the United States

One advantage of the EB-1A visa is that you don't need an employer to sponsor you. You can petition for an EB-1A visa on your own behalf, with no job offer and no company sponsor.

8Option 4: National Interest Waiver

Another route from an E-2 visa to a green card is the National Interest Waiver. The National Interest Waiver is a subcategory of the EB-2 visa, available to professionals with advanced degrees or people of exceptional ability.

In short, the National Interest Waiver waives the requirement of an approved labor certification from a US employer. With it, you can apply for an EB-2 visa without a company sponsor and without a US job offer. 

To qualify for a National Interest Waiver, you must meet 4 requirements:

• You must qualify for an EB-2 visa (minus the labor certification)
• The field you plan to work in must have substantial merit and national importance.
• You must be well positioned to advance your proposed endeavor
• You must show that it is in the national interest of the United States to waive the requirement of a US job offer from a company with an approved labor certification.

9Option 5: Green card through marriage

Marriage is another route from an E-2 visa to a green card. A good-faith marriage to a US citizen or a US permanent resident can bring immigration benefits. 

10What this means for you

The E-2 visa is a great option that lets you live and work in the United States by investing in a US business. But it is a nonimmigrant visa, so it does not lead directly to a green card. To get from an E-2 visa to a green card, you must apply for and be approved for an immigrant classification.

Immigrant visa classifications worth considering include the EB-5 visa, employer sponsorship, EB-1A, the National Interest Waiver and a marriage-based green card.

That's a lot of complex information. If you have questions or want help moving from an E-2 visa to a green card, the best next step is to book a consultation. You'll find all the basics on the visa itself on our E-2 investor visa overview page.

Traveling to the United States without a visa? Find everything about the ESTA application here.

In short

• The E-2 is a nonimmigrant visa: you can renew it again and again, but it doesn't lead to a green card on its own, and children age out at 21.
• You get a green card through an immigrant visa, either by adjusting status in the US or through a consulate; according to USCIS, the E-2 intent to depart does not stand in the way.
• For E-2 investors, the EB-5 is the natural fit: your existing investment and the jobs you have already created can count toward the EB-5.
• Other routes are employer sponsorship through PERM, the EB-1A for extraordinary ability and the National Interest Waiver, which needs no employer.

How we help you

• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.
• Visa Roadmap for Company FormationFormation and visa in one plan, so the company carries the visa.
• Form a CorporationThe US corporation (Inc) for growth, investors and your visa.