E-2 vs. EB-5: The Big Picture

E-2 treaty investor is a nonimmigrant visa for nationals of treaty countries who invest in and direct a bona fide U.S. enterprise. It is relatively fast and renewable, but it does not directly lead to permanent residence.

EB-5 is an immigrant visa category leading to a green card for the investor, spouse, and unmarried children under 21. For direct EB-5, the investor puts capital “at risk” in a new commercial enterprise that creates at least 10 full-time U.S. jobs. Current minimums are generally $800,000 in a TEA (Targeted Employment Area) or $1,050,000 elsewhere.

Why Use the E-2 → EB-5 Bridge

• Speed of entry: E-2 often enables fast relocation to launch and run the business.
• Proof of concept: Operate, refine, and scale before committing EB-5-level capital.
• Continuity: Maintain E-2 status while the EB-5 petition is pending.
• Control: Build an EB-5-compliant business you already understand.

How the Bridge Works (Step-by-Step)

1. Start with E-2: Form or acquire a bona fide enterprise, invest a substantial (but typically lower) amount, and actively direct the business.
2. Grow & plan: Develop a compliant business plan (see Matter of Ho) mapping capital needs, timeline, and how 10 full-time positions will be created.
3. Commit EB-5 capital: Infuse additional funds and/or document irrevocable commitments to reach EB-5 thresholds. Funds must be “at risk.”
4. File EB-5 (I-526E): You do not have to wait until every dollar is spent; see “in the process of investing” below.
5. Maintain E-2: Keep operating lawfully while EB-5 adjudicates. After conditional residence is granted, sustain the investment and jobs to remove conditions (I-829).

“In the Process of Investing” — What It Really Means

Under the statute and regulations (including INA §203(b)(5) and 8 C.F.R. §204.6), an EB-5 petitioner must have already invested the minimum capital or be actively in the process of investing it at filing. In practice, that means:

• Irrevocable commitment: Binding obligations such as a secured promissory note or properly structured escrow with automatic, non-discretionary release triggers (beware of issues highlighted in Matter of Izummi).
• Substantial funds already placed “at risk” before filing—mere intent is not enough.
• Credible, detailed plan: A Matter of Ho-compliant business plan substantiating job creation, timing, and use of proceeds.

Bottom line: You can file EB-5 without having deployed every dollar on day one—if you demonstrate irrevocable commitments and a persuasive, data-backed plan.

Real-World Examples of the Bridge in Action

Example 1: Hospitality Expansion via Escrowed Capital

An investor from France obtained an E-2 after purchasing a small Florida café (~$220,000). Within two years the café was profitable with five full-time staff. To transition to EB-5, the investor placed an additional $650,000 into escrow, earmarked for the build-out of a larger bakery-restaurant concept and a second location. A detailed plan—market analysis, contractor bids, hiring timeline—projected 12+ full-time U.S. jobs.

Although not all funds had been spent at filing, the capital was irrevocably committed and the milestones were documented. USCIS treated the investor as in the process of investing. By I-829, expansion was complete and payroll proved sustained job creation, resulting in permanent residence for the family.

Example 2: Scaling a SaaS Startup

An Indian entrepreneur invested ~$300,000 under E-2 to launch a B2B SaaS company in California, hiring three engineers and two support staff. Eighteen months later, revenue traction justified a further $750,000 infusion for product and go-to-market, pushing total capital over the TEA threshold. The Matter of Ho plan forecast 12 new U.S. jobs (engineering, sales, customer success). The founder filed EB-5 while maintaining E-2 status, then documented growth and staffing to remove conditions successfully.

Key Legal & Practical Considerations

• Source & path of funds: Rigorously document lawful source and clean tracing for both E-2 and EB-5 capital.
• Business plan quality: Comprehensive, data-driven, and internally consistent (revenues, staffing, timing, capex/opex).
• Job creation: For direct EB-5, plan for at least 10 full-time W-2 positions (35+ hours/week). Positions can be filled by different people over time, but jobs must be genuine and ongoing at I-829.
• Entity structure: Ensure the EB-5 investment is in a qualifying new commercial enterprise. Align operating agreements with “at-risk” requirements (no guaranteed returns).
• TEA analysis: Confirm whether the enterprise principally does business in a TEA to qualify for the $800,000 threshold.
• Risk management: EB-5 involves business risk and immigration risk. Maintain compliance in parallel with growth.

Common Pitfalls to Avoid

• Filing EB-5 with only a minor fraction of funds committed and no enforceable obligation for the balance.
• Over-reliance on escrow arrangements that are contingent on factors within the investor’s control.
• Speculative hiring plans without a credible, evidence-backed timeline to reach 10 full-time positions.
• Poor source-of-funds documentation (unverifiable transfers, missing bank records, informal loans).
• Assuming E-2 automatically transitions to EB-5 without restructuring or additional capitalization.

FAQ: E-2 to EB-5 Bridge Strategy

Do I have to invest the full EB-5 amount before filing?

No. You must have already invested or be in the process of investing the minimum capital, with irrevocable commitments and a credible plan. Mere intent isn’t enough.

Can my original E-2 investment count toward EB-5?

Yes, if it meets EB-5 requirements (lawful source, at risk, job-creating, within the qualifying enterprise). Additional funding is usually needed to reach the threshold.

Can I stay on E-2 while EB-5 is pending?

Yes. Many investors maintain E-2 status (and operate the business) while their EB-5 petition is adjudicated.

Do the same 10 employees have to stay the whole time?

No. The requirement is for 10 full-time positions for qualifying U.S. workers. Turnover happens; jobs must be genuine and ongoing at I-829.

Is EB-5 available to nationals of non-treaty countries?

Yes. Unlike E-2, EB-5 is not limited to treaty countries.

Disclaimer: This article is for general information only and does not constitute legal advice. Facts matter. Consult counsel for advice tailored to your situation.

Next Steps

If you’re considering an E-2 → EB-5 bridge, we can assess eligibility, structure capital commitments, and prepare a Matter of Ho-compliant plan calibrated to your timeline.

Contact: Ortega-Medina & Associates (London, UK) · Request a consultation