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Comparing the United States E3 and EB5 Investor Visas

In this article we will take a closer look at the E3 and EB5 Immigrant Investor visas to see how the two compare and contrast.

The fifth preference employment based visa (EB5) was created in 1990 as a way for foreign investors to gain a green card visa and permanent United States residency (and eventual citizenship if desired) through an investment in a new or pre-existing American business that sees the creation of at least 10 new full-time jobs for American workers. The E-3 visa is described by the government’s website as being a “classification (that only) applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States.” In this article we will take a closer look at the E3 and EB5 Immigrant Investor visas to see how the two compare and contrast.

1. You are a national of Australia
   
   
2. You have a legitimate offer of employment in the United States
   
   
3. You possess the necessary academic or other qualifying credentials
   
   
4. The position that you are coming to fill qualifies as a specialty occupation

Hot to Apply for a E3 Visa With a U.S. Embassy or Consulate:

To apply for initial E-3 classification for a worker outside of the United States, your prospective employer should not submit a Form I-129, Petition for Nonimmigrant Worker, with USCIS. Instead, you may apply for an E-3 visa at any U.S. embassy or consulate that processes nonimmigrant petition-based visas.

The following is required on the appointment date with the U.S. Embassy or Consulate:

1. State Department Nonimmigrant Visa Application Form
   
   
2. Form ETA-9035, Labor Condition Application for E-3 Australia which was filed by the prospective employer and certified by the U.S. Department of Labor. See the “Form ETA-9035, Labor Condition Application” link to the right.
   
   
3. Proof of Australian citizenship
   
   
4. Letter from the prospective employer describing the job duties, academic requirements, salary and anticipated length of stay (up to two years initially)
   
   
5. Evidence of academic or other qualifying credentials. If the degree was not obtained from a U.S. university, it should be accompanied by a credentials evaluation.  All documents not in English must be translated
   
   
6. In the absence of academic or other qualifying credential(s), evidence of education and experience that is equivalent to the required U.S. degree
   
   
7. Copy of a license in the state of intended employment, if required to practice the specialty occupation, or if licensure is not necessary to immediately commence employment,  evidence that you will be able to obtain the required license within a reasonable time after admission

How to Apply for an E-3 Visa from Within the United States:

The Form I-129, Petition for Nonimmigrant Worker is used to apply for a change of status to obtain E-3 nonimmigrant temporary worker classification. 

Your Form I-129 must include the following documents:

1. A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application.  Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA
   
   
2. Academic or other credentials demonstrating qualifications for the position
   
   
3. Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
   
   
4. If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation

EB5 Visa – In stark contrast to the E3 visa, lays the eb5 investor visa. According to the government’s web page, to qualify for the eb5 visa program you must:

1. Invest or be in the process of investing at least $1,000,000.  If your investment is in a designated targeted employment area (A Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.) then the minimum investment requirement is $500,000.
   
   
2. Benefit the U.S. economy by providing goods or services to U.S. markets.
   
   
3. Create full-time employment for at least 10 U.S. workers.  This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
   
   
4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a Limited Partner, corporate officer or board member.

We see in this comparison that despite the E3 and EB5 immigrant investor visa are very different in nature and offer disparate paths to a green card visa. While the E3 allows a national of Australia to come to the United States for the purposes of contributing their unique abilities to the American workforce, the EB5 visa relies on an immigrant’s investment to create new full-time jobs for that workforce.

Article Tags: United States, Investor Visas, Specialty Occupation

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