Foreign nationals looking to immigrate to the U.S. may consider two particularly popular visa options: the L-1A and EB-5. This article will delineate the key differences and advantages that each visa has to offer.
General Background:
The EB-5 Immigrant Investor Program offers foreign investors the opportunity to become permanent residents in the U.S.. The basic requirements to obtain an EB-5 Visa are that an investor must invest $1,000,000 (or $500,000 in a Targeted Employment Area) in a new commercial enterprise and create at least 10 full-time jobs in two years. The investor can do this through a USCIS-approved Regional Center. To obtain an EB-5 visa, the petitioner must file an I-526 form, which provides conditional permanent residence to the investor, his/her spouse, and children under 21. If the investor can demonstrate the creation of 10 jobs within 2 years of an approved I-526 application, the investor can then file a Form I-829 condition removal petition.
The L-1 visa classification enables a U.S. employer to temporarily transfer a worker in an executive or managerial capacity (L1-A visa) or a worker with specialized knowledge (L1-B visa – which will not be the focus of this article) from an affiliated[1] foreign office to one of its offices in the U.S. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive, manager, or employee with specialized knowledge to the U.S. with the purpose of establishing one.[2] The L-1A visa petition, Form I-129, is filed by the employer. The initial term of residence for an L-1A applicant is one (if a start-up/new office) or 3 years (if an existing business), which can be renewed in 2-year increments for up to 7 years.[3]
Green Card Obtainability:
The most important difference between the two categories concerns the obtainability of a Green Card, and, hence, permanent residence in the U.S.. As discussed above, the EB-5 visa offers (conditional) permanent residency immediately upon approval of an I-526 application, and unconditional permanent residence after two years if the aforementioned job-creation requirements have been met. As a result, it is considered an “immigrant visa.”
By contrast, the L-1A-category is not an immigrant visa, and allows for a temporary residence of up to 5 or 7 years, assuming the maximum amount of visa renewals have been granted. If the L-1 employee fails to develop the business according to L-1 regulations, the visa renewal will be denied.
However, an L-1 visa can indirectly lead to permanent residence. The petitioning employee may request a Green Card by filing an I-485 petition. In fact, the L-1 visa holder is allowed to have immigrant intent, and this will not endanger the approval of the visa by USCIS or the consulate.[4] For this reason, the L-1 visa is sometimes referred to as a “dual-intent visa.”[5]
Eligibility Requirements:
The second major distinction between the two visas concerns who can apply. The EB-5 eligibility requirements are minimal concerning the investor him or herself. Any foreigner can apply, assuming they have made an investment of at least $500,000 in a valid commercial enterprise.
By contrast, there are several eligibility requirements concerning both the employer and the employee seeking an L-1 visa. Regarding the employer, the new U.S. office must have a corporate relationship with a foreign entity abroad. This means that the new U.S. office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control. In addition, the U.S. and foreign offices must be doing business for the duration of the beneficiary’s stay in the United States as an L-1. Regarding the employee, he or she must be an executive, manager, or provide services in a specialized knowledge capacity. In addition, the employee must have been working for the foreign entity, for one continuous year within the three years immediately preceding his or her admission to the United States.[6]
Which Visa is Right for You?
Deciding between visas depends largely on whether the petitioner is working for a foreign company. A person wishing to come to the U.S. who does not work for a foreign entity will not be able to apply for the L-1A visa, since it requires the beneficiary to be an executive, manager, or a person with specialized knowledge who has worked for the foreign entity for at least one year in the last three years prior to petitioning. If the beneficiary seeks permanent residence in the U.S., he or she can submit an I-485 petition.
Petitioners who do not work for a foreign company and have $500,000 to invest should consider the EB-5 visa option because it provides a direct route to a Green Card. Each petitioner must carefully select the right visa category with the help of a trusted immigration attorney. The chart, below, conveniently summarizes these important distinctions:
| EB-5 | L-1A | |
| Green Card obtainability | Direct and guaranteed:assuming requirements are met, the EB-5 visa establishes conditional residency for 2 years, after which petitioner can receive permanent residency pending a successful I-829 petition | Non-immigrant Visa: the L-1 visa is a temporary , non-immigrant visa, but successful petitioners can submit an I-129 petition to request permanent residence |
| Who can apply | Any foreign investor meeting aforementioned investment requirements | An Intracompany transferee· L1-A: Petitioner must have been employed in an executive or managerial capacity at an affiliated overseas office continuously for at least 1 of the past 3 years. |
| Investment requirement | $500,000 in Targeted Employment Areas, or $1,000,000 elsewhere | None |
| Job creation requirement | 10 | No specific requirement |
| Duration | Conditional residency for 2 years; permanent residency thereafter following successful I-829 petition | · L1-A: Initial one- or 3-year term, which can be renewed in 2-year increments for up to 7 years |
| Family Members | Spouse and unmarried children under 21 will be granted same residency status as petitioner. | Spouse and unmarried children under 21 will be issued L-2 dependent visas. |
| Business Plan | Must comply with Matter of Ho and include: (i) a description of the business, (ii) the business structure, (iii) a marketing plan with target market analysis, (iv) personnel experience, (v) a competitive analysis, (vi) required licenses and permits, (vii) staffing timetable for hiring, (viii) job descriptions, and (ix) a budget and financial projections…Most importantly, the Business Plan must be credible. | Although there are no specific requirements, the business plan must clearly set out the reasons for the development of the business in the U.S. and must clearly demonstrate the relationship between the foreign and U.S. entities, the beneficiary’s executive or managerial role, and outline job creation details including clear structural information and organizational/ hierarchical charts |
Whichever visa option is pursued, the experts at e-Council Inc. know how to write business plans—a requirement for both EB-5 and L-1 visa approval—that have the best possible chance of passing USCIS’s intense scrutiny. To find out about professional, well-researched, articulate, expository narrative Visa Business Plans, whether for L-1, EB-5 or any other business-related Visa, as well as a variety of ancillary services, all of which are designed to specifically address USCIS’s concerns, contact e-Council Inc. at info@ecouncilinc.com.
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[1] According to USCIS, “The US office must be a parent, affiliate, subsidiary, or branch of the foreign entity, and both the US office and the foreign entity must continue to share common ownership and control.” See http://www.uscis.gov/eir/visa-guide/l-1-intracompany-transferee/understanding-l-1-requirements
[2] http://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager; http://www.uscis.gov/working-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge
[3] http://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager
[4] http://www.whicheb5.com/blog/l-1a_visa_vs_eb-5_visa/
[5] http://www.immihelp.com/l1-visa/
[6] http://www.uscis.gov/working-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge; http://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager