E-2 and EB-5 Investor Visas – For Referring and Co-Counsel Attorneys

A working briefing for attorneys whose clients want to invest in and move to the United States. What these visas are, how a client qualifies, and why the current enforcement climate has raised the cost of getting the filing wrong.

What the E-2 and EB-5 Visas Actually Are

Both let a foreign national come to the United States through investment, but they are different tools for different clients. The choice between them, and whether either fits at all, is where good counsel earns its fee.

E-2 — Treaty Investor (nonimmigrant)

The E-2 lets a national of a country that holds a qualifying treaty of commerce with the United States come to the U.S. to direct and develop a business they have invested in. It is not a green card. It can be renewed more or less indefinitely as long as the business and the eligibility hold up, and a spouse can obtain work authorization. It is often the fastest investor route for clients from treaty countries.

Core Requirements

• Treaty nationality. The investor (and the enterprise, at least 50% owned by treaty nationals) must hold the nationality of a qualifying treaty country.
• Substantial, at-risk investment. No fixed dollar minimum; the amount is measured in proportion to the cost of the business, and the capital must already be committed and genuinely at risk.
• A real, active business. The enterprise must be a genuine operating business, not marginal, meaning it must do more than merely support the investor and their family.
• Ownership and control. The investor must own at least 50% or otherwise control the business and actually direct it.
• Source of funds. The investor must document, traceably, that the invested capital was lawfully obtained.

EB-5 — Immigrant Investor (green card)

The EB-5 is an immigrant path: it leads to conditional permanent residence and, after the conditions are removed, a green card and a route to citizenship. It requires a larger investment and job creation, and unlike the E-2 it is open to nationals of any country. Many clients who cannot use the E-2, because their country has no treaty, choose EB-5 instead.

How a Client Qualifies

• Qualifying investment. Generally a minimum of $1,050,000, reduced to $800,000 for a project in a targeted employment area (a rural area or one of high unemployment). Confirm current figures, as they are indexed and subject to change.
• Job creation. The investment must create or preserve at least 10 full-time U.S. jobs within roughly two years.
• At-risk capital and lawful source. As with the E-2, the money must be genuinely at risk and its lawful source fully documented.
• Direct or regional-center investment. The client may invest directly in their own new commercial enterprise or through a USCIS-designated regional center; each carries different diligence and risk.
• Conditional residence, then removal of conditions. Approval brings a two-year conditional green card; the investor must later prove the investment and jobs to make residence permanent.

Investment thresholds, treaty-country lists, and program rules change. The figures above are general and current as of this writing; every matter is confirmed against the governing authority at the time of filing.

Why This Matters Now: Investor and Cross-Border Cases Are Under Heightened Scrutiny

The current federal environment has made investor and business-visa cases harder and less forgiving. Consular officers are exercising broader discretion, source-of-funds documentation is examined more closely, renewals that once cleared routinely now draw questions, and enforcement against foreign nationals connected to U.S. investment projects has become far more aggressive. The recent news below shows the climate your investor clients are walking into. A clean, well-documented filing matters more than it did even a year ago.

Reuters / ABC News – Sept.–Nov. 2025
Immigration raid at the Hyundai–LG battery plant in Georgia detains more than 300 South Korean workers
Federal agents detained more than 475 workers, over 300 of them South Korean engineers and installers, at a Georgia EV-battery plant, most on B-1 business-visitor visas or the ESTA visa waiver. The episode exposed how ambiguous the line is between permitted business activity and unauthorized work, and rattled foreign investors across the country.

The Korea Times – Sept. 2025
The Georgia raid casts a shadow over Samsung’s $40 billion Taylor, Texas semiconductor project
As states moved to reassure Korean investors after the raid, Samsung, already tightening its own short-term-travel guidance for staff, faced the same visa uncertainty at its Taylor, Texas fab that Hyundai faced in Georgia. Texas officials publicly emphasized Samsung’s investment even as the enforcement questions went unresolved.

U.S. Citizenship & Immigration Services – 2025–2026
USCIS and the State Department confirm increased screening and vetting for E-2 applicants
Following a 2025 executive order, USCIS and the Department of State increased screening and vetting for certain E-2 treaty-investor applicants, including new English-proficiency evidence requirements for some categories, an official signal of the tighter adjudication environment practitioners are seeing across investor cases.

EB-5 investigations and securities scrutiny

EB-5 carries its own layer of risk, because the investment is also a securities transaction. The SEC and USCIS have for years pursued fraud and misuse in the program, and diligence on the project, the regional center, and the offering is now an essential part of protecting an investor client.

SEC & USCIS – Joint Investor Alert
Federal agencies warn that fraudulent securities offerings exploit the EB-5 program
The SEC’s Office of Investor Education and USCIS jointly warned investors that scams misuse EB-5, and have taken emergency enforcement action to halt fraudulent offerings, including a coordinated action to stop an alleged $156 million EB-5 fraud tied to a Chicago project.

U.S. Government Accountability Office
GAO finds gaps in EB-5 fraud and national-security monitoring
A GAO review of the program found that USCIS lacked readily available data on the types of fraud unique to EB-5 and recommended better tracking of denials and regional-center terminations, underscoring why independent diligence on a project matters to the investor.

A note on the news above: the Georgia and Texas matters involve short-term business-visitor and work-authorization enforcement on foreign workers, not E-2 revocations as such. They are included because they illustrate the broader enforcement and scrutiny climate now facing foreign nationals and the investment projects they support. The specifically E-2 and EB-5 points are sourced to the government and program materials cited.

For You and Your Client: Why an Investor Client Needs an Experienced Immigration Attorney

Investor cases fail less often on the money than on the paperwork and the structure. The recurring failure points, source of funds, marginality, ownership and control, treaty nationality, credible business planning, are exactly where experience changes the outcome.

1. The filing is a business case, not a form
   An investor petition succeeds or fails on how the investment and the business are structured and documented. The firm has structured E-2 and EB-5 investments across real estate, construction, distribution, hospitality, retail, franchising, solar, farming, cattle, and ranching, and works through the deal-structure questions that decide the case.
2. Source of funds is where weak cases break
   Most refusals trace to source-of-funds documentation that cannot withstand scrutiny, not to an investment that is too small. Building a clean, traceable record is painstaking work, and it is the work that carries the case.
3. Scrutiny rewards preparation
   With interviews longer and consular discretion broader, the prepared applicant, with a coherent business plan, consistent forms, and a credible story, is the one who clears. Preparation is now the difference between an approval and a quiet denial.
4. Your client stays your client
   The firm handles the U.S. immigration filing and the related business work, keeps you informed, and returns the client to you. Where a co-counsel arrangement is appropriate, the client agrees to it in writing and knows the fee arrangement, consistent with the applicable disciplinary rules.

Attorney Kyle Kinzy is also writing a practical guide to the E-2 process, on how an investor and counsel can work together toward a successful application. Referring and co-counsel attorneys can request a copy when it is available.